Personal Liberty under Article 21 and Data Privacy in Investigations
Issue
The High Court of Karnataka in WP No. 11759/2020, Mr. Virendra Khanna Vs. State of Karnataka & Ors. had to deal with the core issue as to “whether the involuntary administration of any of these tests is compatible with the constitutional guarantee of “substantive due process”. The standard of “substantive due process” is of course the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of “personal liberty”.
Thereby, 13 Questions were addressed in detailed manner.
Decided
12th March,2021
Personal Liberty
It is pertinent to note that Our Constitution provides for Protection of life and personal liberty under Article 21.
21. Protection of life and personal liberty.–No person shall be deprived of his life or personal liberty except according to procedure established by Law.”
Right to Privacy
The Court while dealing with the core issue observed as under;
4.13. Since the right to privacy is recognised as a fundamental right under Article 21 of the Constitution, to take away this fundamental right, even of an accused, there must be a law enacted by Parliament and the Law must meet the test of Article 21 as laid down in Maneka Gandhi’s case i.e., it must be just, fair and reasonable not illusory.
4.14. Till today, no law is enacted by Parliament empowering any Court to give direction to accused to give password and information contained in mobile phones. In the absence of this, the order of the Special Court dated 14-9-2020 is not sustainable in Law. Self Incrimination 4.15. Even during police interrogation, the accused is entitled to remain silent, therefore insisting on revealing passcode or to unlock his mobile phone and to open his E-mail accounts amounts to compelling him to be a witness against himself, which is in violation of Section 161 (2) of the Code of Criminal Procedure and also under articles 20 clause (3) and 21 of the Constitution. In this regard, he relied on the decision of the Hon’ble Supreme Court of United States in Miranda vs. Arizona [384 U.S. 436 (1966) DD 13.06.1966].
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4.22. The principle of a right to remain silent of the accused during the investigation is well recognised in the decision of U.S.A Supreme court in Miranda V/s Arizona, which is applied worldwide and also by the Hon’ble Supreme Court in the decision Of Nandini Sathpaty V/s P.L.Danis and another reported in 1978(2) SCC Page 424.
4.23. Mobile of Petitioner is seized in this case. Any mobile phone can be decrypted by experts. If the expert decrypt the mobile phone. Then the data available in the said mobile phone or any other electronic documents, if it is of nature protected under right to privacy, the same cannot be used without the consent of WP No.11759/2020 owner, and if no consent is given, it cannot be taken, without the authority of Law.
4.24. Section 45-A of the Evidence Act, only describes the relevancy of the opinion of the examiner of Electronic Evidence as contemplated under Section 79-A of the Information Technology Act 2000.
4.25. But these provisions do not specifically provide for taking away the fundamental rights guaranteed under Article 20 (3) and 21, particularly the Right to privacy, is protected under Article 21 of the Constitution. 4.26. Therefore, the impugned orders dated 14-09-
2020 and 23-09-2020, re-affirmed by order dated 15-10-2020, passed by the Hon’ble Special Court, take away the Constitutional Rights of Petitioner; hence those orders are liable to be quashed.
The Court further observed that
5.3. The application came to be filed only because the Petitioner did not divulge the passwords. If the Petitioner had divulged the password, there would have been no requirement to file the Application.
5.4. The order dated 14.09.2020 directing the Petitioner to furnish the password does not violate any of his rights under 5.4.1. Article 20(3) of the Constitution of India and Section 161(2) of the Code of Criminal Procedure, 1973;
5.4.2. Article 21 of the Constitution of India. 5.5. Article 20(3) of the Constitution of India provides that no person accused of an offence shall be compelled to be a witness against himself. In order to avail the benefit of this provision, the Petitioner must demonstrate WP No.11759/2020 that:
5.5.1. the disclosure of the password is in the nature of personal testimony; and
5.5.2. the disclosure of the password would lead to self-incrimination.
5.6. Neither of the conditions being satisfied the order dated 14.09.2020 does not violate the rights of the Petitioner under Article 20(3) of the Constitution of India.
5.7. The disclosure of the password is not in the nature of personal testimony.
Findings on 13 Questions
Guidelines cum Answers on Data Privacy in Searches
9. ANSWER POINT No.1: Can a direction be issued to an accused to furnish the password, passcode or Biometrics in order to open the smartphone and/or email account?
9.1. The Investigating Officer, during the course of an investigation, could always issue any direction and/or make a request to the accused or other persons connected with the matter to furnish information, to provide material objects or the like. These directions are routine in any investigation. Thus, during the course of the investigation, the Investigating Officer could always request and/or direct the accused to furnish the password, passcode or Biometrics, enabling the opening of the smartphone and/or email account. It is up to the accused to accede to the said request and or directions. If the accused were to provide such a password, passcode or Biometrics, the Investigating Officer could make use of the same and gain an access to the same.
( AMLEGALS Note – There is no mentioning of Answer to Point 2 in the order, rather it goes to 3)
10. ANSWER TO POINT NO.3: Can a Court issue a suomoto order to the accused to furnish a password, passcode or Biometrics?
10.1.The Court cannot per se issue any directions to the accused to furnish the password, passcode or Biometrics and direction to cooperate would not amount to a direction to furnish password, passcode or Biometrics. The gathering of information and/or evidence, mode and methodology of investigation is in the exfaciedomain of the Investigating Officer.
10.2. The court by itself cannot suo moto order for furnishing of the password, passcode or Biometrics. The Court is not part of the investigation. The Court can only act on an application being filed by either of the parties.
11. ANSWER TO POINT NO.4: In the event of a direction being issued and the accused not furnishing the password, passcode or Biometrics, what is the recourse available to an Investigating Officer?
11.1. In the event of the accused not providing the password, passcode or Biometrics, the Investigating Officer can approach the Court seeking for necessary directions to the accused to provide the same and/or carry out a search of the smartphone or any electronic equipment.
11.2. The Investigating Officer could approach the concerned Court seeking for issuance of a search warrant to carry out a search of the smartphone and/or electronic equipment.
12. ANSWER TO QUESTION NO.5: What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?
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12.21. The investigating officer could issue a notice under Section 91 of Cr.P.C., calling upon the accused or any other person to produce any particular document or equipment as stated above. If not so produced, a search warrant could be sought for from the Court of law. Be that as it may without issuance of a notice under Section 91 of Cr.P.C., a search warrant could be issued inasmuch as the issuance of a notice under Section 91 of Cr. P.C. is not a pre-condition for issuance of a search warrant under Section 93 of Cr. P.C. Once a search warrant is issued and received by the accused or any other person it would be the obligation of such person to permit the search and/or to provide document or thing called upon.
12.22. While issuing a search warrant, the concerned Court would have to indicate as to what smart phone, electronic equipment or email account is to be searched. The role of the same in the crime, the nature of search to be done, place where the search has to be done as also specifically interdict the persons carrying out the search from disclosing the material and/or data procured during the course of the said search to a third party. So as to preserve the privacy of the concerned.
12.23. The provisions referred to and mentioned deals with search and seizure. Electronic equipment occupies a slightly different position, in that it is not only the seizure of the phone and equipment, but once it is seized, the said equipment is required to be opened more often than not such equipment are locked by password, passcode or biometrically. Thus, for the purpose of opening and/or accessing the data on the said equipment, it would be required for the accused or person in charge of the said equipment to provide a password, passcode or open the same using the biometrics.
12.24. As mentioned above, in terms of Section 100 of Cr.PC., a person in charge of a closed place is also required to permit such search and, in fact, facilitate such search.
12.25. Applying the said principle to a smartphone, electronic equipment or an email account, it would but be required for the accused or a person in charge of electronic equipment to provide the password, passcode or biometrics to open the Smartphone, computer equipment or email account.
12.26. It is these aspects which have to be considered in the present circumstances. Section 69(1) of the IT Act empowers the specified officers to pass orders compelling the decryption of any information, generated, transmitted, received or stored in a computer resource which would also include a smartphone.
12.27. When the said authority is satisfied that it is necessary for the purpose of any investigation into any offence, however, an officer, before ordering such decryption, is required to record in writing the reasons for calling upon for such decryption and inform the person of the possibility of prosecution if he does not comply with a request.
12.28. Search and seizure are important weapons in the hands of the officers concerned therefore it is but required that such powers should be exercised with due circumspection and discretion, and the same should not result in harassment of innocent persons. When a search is made with a warrant, the procedure required to be followed is stated in the Cr. P.C, which need to be so followed. Even when a search is made without a search warrant, it would be treated that such a search or consequent seizure is conducted/made the safeguards enshrined under the Cr. P.C.
12.29. As observed above, the officers conducting a search are required to comply with the procedural requirements of Cr.P.C, some of them though not exhaustive, are enumerated hereunder:
12.29.1. A lady officer is required to be present if the accused is a lady or if the equipment is located in a place where there are ladies present.
12.29.2. The search and seizure should normally be done after sunrise and before sunset. However, if it is conducted after sunset and before sunrise, the grounds as to why it was felt necessary to take such action should be recorded and copy of the grounds so recorded must be sent within 72 Hours to the immediate official superior.
12.29.3. The officers before starting the search are required to disclose their identity by showing their identity cards to the owner of the premises.
12.29.4. Search should be made in the presence of two independent and respected witnesses of the locality.
12.29.5. A Panchnama / Mahazar, should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. This document and the list of things seized needs is to be signed by the witnesses and the owner of the premises before whom the search is conducted and also by the officers who are carrying out the said search.
12.29.6. After examination of the seized goods or things by the authority, the same to be sent for any technical/forensic examination within a period of 72 hours thereof.
12.29.7. A search and seizure report to be prepared containing the details of the conduct of the search and outcome, containing the names of the officers and other persons including the panchas and witnesses who participated in the search.
12.29.8. A copy of the Panchnama / Mahazar prepared to be furnished to the person in- charge/owner of the premises being searched under acknowledgement.
13. ANSWER TO QUESTION NO.6:Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused?
13.1. Since, as stated above, a smartphone can contain humongous data, which could also be incriminatory insofar as the person owning the said electronic equipment, including the smartphone, is concerned and it is in this background, we have to consider the providing of a password, passcode or biometrics and whether making available, this incriminatory material would amount to giving of testimony and or a statement in terms of Section 161 of Cr.P.C.
13.2. On a notice being issued under Section 160 of Cr.P.C., any witness could be examined by WP No.11759/2020 the police, the witness could be the accused himself.
13.3. Such a statement needs to be reduced to in writing wherein such person is required to answer all questions relating to such case, other than the questions, the answer to which would have the tendency to expose him to a criminal charge or a penalty or forfeiture. That being a right to protection of self-incrimination as enshrined under Article 20 of the Constitution of India.
13.4. Though Mr Tigadi, learned counsel for the Respondent contended that the disclosure of password is in the nature of giving specimen signatures or handwriting and therefore a direction could be issued under Section 311-A of the Cr. P.C, I’m of the considered opinion WP No.11759/2020 that the providing of a password, passcode or biometrics is more than that, and a direction cannot be issued in that manner.
13.5. In the event of password, passcode or Biometrics being provided and the Investigating Officer gaining access to the said smartphone and/or electronic equipment or email account, the data so gathered would have to be treated as any other document and/or object secured during the course of investigating like in the case of securing a murder weapon. The same does not by itself prove that the accused has committed the murder, similarly, the data gathered by itself would not prove the guilt of the accused. The data gathered would have to be proved during the course of the trial as done in any other matter.
14. ANSWER TO POINT NO.7:Would providing a password, passcode or Biometrics amount to self-incrimination or testimonial compulsion?
14.1. As regards the contention that providing of the password/pass code will amount to testimonial compulsion, I am of the considered opinion that there is no testimony which is given by the accused by providing the said password, passcode or biometrics by which the document is being accessed by the Investigating officer.
14.2. The XI Judge Bench of the Apex Court in Kathi Kalu Oghad’s case has categorically held that providing of a thumb impression or impression of the palm or foot or fingers or specimen in writing or exposing a part of the body of an accused person for the purpose of identification would not amount to testimonial compulsion. Mere providing of an access of to smartphone or e-mail account would not amount to being a witness, the information that is accessed by the Investigating officer on the smartphone and or the e-mail account being only access to the data and/or documents, it is for the Investigating officer to prove and establish the same in a Court of Law by following the applicable Rules of evidence.
14.3. Merely because any document is present or available on the smartphone and or the e- mail account would not by itself establish the guilt or innocence of an accused. Both the prosecution, as also the accused/defence would be required to prove the said document or data by other evidence also.
14.4. If the submission of Mr.Hasmath Pasha, learned Senior counsel would be accepted, the same would result in a chaotic situation:
14.4.1. No blood samples can be taken;
14.4.2. no sample for DNA analysis could be taken;
14.4.3. no handwriting samples can be taken;
14.4.4. no other body sample for the purpose of DNA analysis could be taken
14.4.5. No search of a house or office could be undertaken.
14.4.6. The data of a laptop or computer or server cannot be accessed by the Investigating officer.
14.4.7. offences like cyber crime could never be investigated.
14.4.8. Offences like pornography, child pornography which are more often than not, on the internet, could not be investigated.
14.5. A direction to provide a password, passcode, biometrics would not amount to testimonial compulsion. It is only in the nature of a direction to produce a document. Mere providing access to a smartphone or e-mail account would not amount to self- incrimination since it is for the investigating agency to prove its allegation by cogent material evidence.
14.6. The data available on a smartphone or e-mail account would also have to be proved by the investigating agency in accordance with Law. Mere providing of password, passcode or biometrics would not amount to answering any question put forward by the Investigating Officer, and as such, it would not amount to a violation of Section 151(2) of the Cr.P.C.
14.7. As contended by Sri.Veranna Tigadi, learned counsel providing of the password, passcode, pin, biometrics is akin to finger printing and/or taking imprints of the shoes, soles and or taking sample of the clothes, biological samples, chemical samples, etc, same cannot amount to forced testimony on part of the accused. On the examination of the data in the telephone/mobile and or on the computer, etc, prosecution would have to prove the same by cogent evidence.
14.8. By providing of password, passcode or biometrics, there is no oral statement or a written statement being made by the accused like the Petitioner herein, therefore it can not be said to be testimonial compulsion.
15. ANSWER TO QUESTION NO.8:Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics?
15.1. This aspect is to be considered in light of the principles propounded by the Hon’ble Apex Court in Justice Puttaswamy’s case supra. More so, in view of the fact that the data which could be available on the said electronic equipment being personal in nature could also be misused by the investigating agency and/or the investigating agency would come into possession of personal data which are held secret by that person which have nothing to do with the investigation at all more so since there cannot be a strict compartmentalisation of data as personal or not personal in the said equipment belonging to a person or in the e-mail account.
15.2. Once the investigating agency has an access to a electronic equipment more particularly smart phones and/or laptops, the Investigating Officer has a free access to all data not only on the said equipment but also any cloud service that may be connected to the said equipment, which could include personal details, financial transactions, privileged communications and the like.
15.3. The rules which are applicable to physical document where a particular document could be classified as a privileged communication and/or strictly private and confidential cannot apply to the data which is stored on a smartphone or any other electronic equipment since once an investigating officer has an access to the said smartphone, electronic equipment or e-mail account, he would have complete access to the data.
15.4. Such data though may not be incriminatory, may be very private or secret to the person or such data could incriminate the said person in any particular offence.
15.5. The use of such data during the course of the investigation would not amount to a violation of the right to privacy and would come within the exceptions carved out in Justice Puttaswamy’s case supra, however, the disclosure, making public or otherwise in court proceedings would have to be determined by the concerned judge by passing a judicial order. In no case could such details or data be provided by the investigating officer to any third party during the course of investigation without the written permission of the court seized of the matter. The responsibility of safeguarding the information or data which could impinge on the privacy of the person will always be that of the investigating officer, if the same is found to have been furnished to any third party the investigation officer would be proceeded against for dereliction of duty or such other delinquency as provided.
16. ANSWER TO POINT NO.9:What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or Biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or Biometrics of that person?
16.2. In the event of the accused not co-operating and not providing necessary password, passcode adverse inference could be drawn subject to the prosecution pointing out the nature of such adverse inference which could be drawn.
16.3. The second situation is even more dangerous inasmuch as the accused may provide a wrong password or passcode and or provide biometrics of a wrong person, and sometimes by way of the usage of such wrong password, passcode or biometrics for more times than one, the device could either get locked and/or the data on the said device and the e-mail account could be wiped out automatically because a wrong password, passcode or biometrics has been used multiple times. The Investigating agency therefore has to be aware of and careful of this possibility.
16.4. The accused in such a situation is therefore required to be given only one chance to provide the proper password, passcode or biometrics to open the smartphone and e- mail account.
16.5. In both the above situations, the Investigating Agency would also be at liberty to engage such specialised agency as may be required in order crack the password, passcode or biometrics so as to have access to the smartphone and or the e-mail id. The accused cannot thereafter contest the methodology used by the Investigating Agency to access the information on the smartphone or e-mail account since the accused having been given an opportunity to co-operate and provide the password, passcode, or biometrics, has refused to co- operate and do so,
16.6. The rules of electronic device would apply to any data if sought to be made use of by the Investigating agency in a Court of Law. The Investigating agency would be at liberty to clone the smartphone and or hard disk of the smartphone, as also any data available on any cloud service to which the smartphone is connected to and make use of the same during the course of investigation and/or trial.
16.7. Similarly the Investigating agency would be at liberty to block the access to the e-mail accounts once opened by changing the password so that no one else apart from the designated officers would have access to the said smartphone, computer equipment or e- mail accounts. The data available on the said e-mail account could be downloaded and preserved, as also made use of by the Investigating agency for the investigation.
16.8. Thus the procedure that would have to be followed would be as under:
16.9. It would be required for the prosecution to approach the Court to seek a search warrant to search the smartphone and or e-mail account. Once a search warrant is issued, it is upto the Petitioner- accused to provide the password, passcode, biometrics etc.,
16.10. The investigating agency could also serve a notice on the accused indicating that in the event of the accused not furnishing the said password, passcode, biometrics etc., an adverse inference would be drawn against the accused as regards the aspects notified in the said notice. The accused can then, in order to avoid the adverse inference from being drawn, furnish the password, passcode or biometrics to the Investigating authorities.
16.11. In the event of the accused or any other person not providing the password, passcode or biometrics, on an application made by the prosecution, the court could direct the service provider viz., manufacturer of the smartphone and/or e-mail service provider, to open or unlock the smartphone and/or email account to enable access to the said smartphone and/or email account.
16.12. In the event of the manufacturer and the service provider not facilitating the opening of the smartphone, email account or computer equipment, then the Court on an application being filed in that regard permit the Investigating Officer to hack into the smartphone and/or email account.
16.13. The investigating agency would be empowered to engage the services of such persons as may be required to hack into the smartphone and or e-mail account and make use of the data available therein, which would be akin to breaking open a lock or door of the premises when the accused were to refuse to co-operate with the Investigating officer and open the door of locked premises.
16.14. In the event of the investigating agency is unsuccessful in hacking into the smartphone and or the e-mail account and during the course of such a procedure, if the data on the smartphone and or the e-mail account being destroyed then, the Investigating agency/prosecution would be free to rely upon the notice by which the accused was warned of adverse inference being drawn.
17. ANSWER TO POINT NO.10:What are the protection and safeguard that the Investigating Officer would have to take in respect of the smartphone and/or electronic equipment?
17.1. It is required for the Investigating Officer or the search team to carry out the search in a proper and scientific manner, more so since what has to be searched in the electronic equipment, smartphone or email account.
17.2. Apparently, there are no rules formulated by the police department regarding the manner of carrying out a search and/or for preservations of the evidence gathered during the said search in respect of smartphone, electronic equipment or email account.
17.3. It would be in the interest of all the stakeholders that detailed guidelines are prepared by the police department in relation to the same.
17.4. Pending such formulation, it would be required that the following minimum guidelines are implemented:
17.5. In the case of a personal computer or a laptop:
17.5.1. When carrying out a search of the premises, as regards any electronic equipment, Smartphone or e-mail account, the search team to be accompanied by a qualified Forensic Examiner.
17.5.2. When carrying out a search of the premises, the investigating officer should not use the computer or attempt to search a computer for evidence. The usage of the computer and/or search should be conducted by a properly authorized and qualified person, like a properly qualified forensic examiner.
17.5.3. At the time of search, the place where the computer is stored or kept is to be photographed in such a manner that all the connections of wires including power, network, etc., are captured in such photograph/s.
17.5.4. The front and back of the computer and/or the laptop while connected to all the peripherals to be taken.
17.5.5. A diagram should be prepared showing the manner in which the computer and/or the laptop is connected.
17.5.6. If the computer or laptop is in the power-off mode, the same should not be powered on.
17.5.7. If the computer is powered on and the screen is blank, the mouse could be WP No.11759/2020 moved and as and when the image appears on the screen, the photograph of the screen to be taken.
17.5.8. If the computer is powered on, the investigating officer should not power off the computer. As far as possible, the investigating officer to secure the services of a computer forensic examiner to download the data available in the volatile memory i.e., RAM since the said data would be lost on the powering down of the computer or laptop.
17.5.9. If the computer is switched on and connected to a network, the investigating officer to secure the services of a forensic examiner to capture the volatile net work data like IP address, actual net work connections, net work logs, etc., 17.5.10. The MAC address also to be identified and secured.
17.5.11. In the unlikely event of the Forensic examiner not being available, then unplug the computer, pack the computer and the wires in separate faraday covers after labeling them.
17.5.12. In case of a laptop if the removal of the power cord does not shut down the laptop to locate and remove the battery.
17.5.13. If the laptop battery cannot be removed, then shut down the laptop and pack it in a faraday bag so as to block any communication to the said laptop since most of the laptops, nowadays have wireless communication enabled even when the laptop is in the stand by mode.
17.6. Seizure of networked devices: Apart from the above steps taken as regards seizure of the computer, laptop, etc., if the said equipment is connected to a network:
17.6.1. To ascertain as to whether the said equipment is connected to any remote storage devices or shared network drives, if so to seize the remote storage devices as also the shared network devices.
17.6.2. To seize the wireless access points, routers, modems, and any equipment connected to such access points, routers, modems which may some times be hidden.
17.6.3. To ascertain if any unsecured wireless network can be accessed from the location. If so identify the same and secure the unsecured wireless devices since the accused might have used the said unsecured wireless devices.
17.6.4. To ascertain who is maintaining the network and to identify who is running the network – get all the details relating to the operations of the network and role of the equipment to be seized from such network manager.
17.6.5. To obtain from the network manager, network logs of the machine to be searched and/or seized so as to ascertain the access made by the said machine of the net work.
17.7. Mobile devices:Mobile devices would mean an include smartphone, mobile phone, tablets GPS units, etc., during the course of seizure of any of the mobile devices, apart from the steps taken in respect of a computer and/or laptop, the following additional steps to be taken:
17.7.1. Prevent the device from communicating to network and/or receiving any wireless communication either through wifi or mobile data by packing the same in a faraday bag.
17.7.2. Keep the device charged throughout, since if the battery drains out, the data available in the volatile memory could be lost.
17.7.3. Look for slim-slots remove the sim card so as to prevent any access to the mobile network, pack the sim card separately in a faraday bag.
17.7.4. If the device is in power-off mode, the battery could also be removed and kept separately.
17.7.5. If the device is powered on, then put it in an aeroplane mode in android device or airplane mode in a IOS device.
17.8. In all the cases above, the seized equipment should be kept as far as possible in a dust- free environment and temperature controlled.
17.9. While conducting the search, the investigating officer to seize any electronic storage devices like CD, DVD, Blu-Ray, pen drive, external hard drive, USB thumb drives, solid-state drives etc., located on the premises, label and pack them separately in a faraday bag.
17.10. The computers, storage media, laptop, etc., to be kept away from magnets, radio transmitters, police radios etc., since they could have an adverse impact on the data in the said devices.
17.11. To carry out a search of the premises to obtain instructions manuals, documentation, etc., as also to ascertain if a password is written down somewhere since many a time person owning equipment would have written the password in a book, writing pad or the like at the said location.
17.12. The entire process and procedure followed to be documented in writing from the time of entry of the investigation/search team into the premises until they exit.
18. ANSWER TO POINT NO;11:Whether the order dated 14.09.2020 passed by the Trial Court directing the Petitioner to co-operate with the investigating agency ad provide a password to open the smartphone and email account is proper?
18.1. The trial court in the present case has directed the Petitioner accused to co-operate with the Investigating agency and provide the password, passcode for the smartphone, as also for the e-mail account of the Petitioner, I am of the considered opinion that the examination of a smartphone or an e-mail account is in the nature of a search being carried out, such a search cannot be so carried out without a search warrant. The trial Court by merely directing the Petitioner to co-operate with the Investigating agency, the Petitioner cannot be forced or constrained to provide such a password, passcode, biometrics etc., for the purpose of opening of the smartphone and or an e-mail account, much less without recording reasons for the same. Th e process and procedure as discussed and detailed above would have to be followed.
18.2. For all the aforesaid reasons the order dated 14.09.2020 passed by the trial directing the Petitioner to co-operate with the investigating agency ad provide a password to open the smartphone and email account is not proper or legal and is therefore set aside. Liberty is, however, reserved to the prosecution to file necessary applications, which would be considered by the trial court in accordance with applicable law and discussion above.
19. ANSWER TO POINT NO;12: Whether the order dated 23.09.2020 passed by the Trial Court directing the Petitioner to undergo a polygraph test violates the rights of the Petitioner under Article 20 of the Constitution of India?
19.1.The Trial Court, by its order dated 29.03.2020, had directed the administration of polygraph test on the Petitioner. This order was passed on an oral request without there being an application filed by the prosecution and no opportunity having been provided to either the Petitioner or his counsel. The Petitioner was also not heard on the same nor was his consent obtained by the trial Court before the order dated 23.09.2020 was passed.
19.2.Though it is contended by Sri. Veerana Tigadi learned Special prosecutor that the order dated 23.09.2020 only directed administration of a polygraph test and that no polygraph test would have been administered without the consent of the Petitioner; in my considered opinion, no such order could have been passed without having obtained the consent of an accused like the Petitioner.
19.3.In my considered opinion, there is no question of post-decisional hearing or consent, any consent of the accused would have to be obtained by the Court ordering the administration of polygraph test before directing so. The Apex Court in Selvi’s case (supra), the relevant paragraphs which has been extracted hereinabove has categorically held that there cannot be an administration of a compulsive polygraph test which would also mean that no order for administration of polygraph test made without obtaining the consent of the person on whom it is administered.
19.4. Merely because an accused is silent, neither accepts or rejects the administration of polygraph test would also not amount to consent being provided by the accused. Such a consent has to be categorical without any doubt and be made after being informed and made aware of the implication of the polygraph test and effect thereof.
19.5.The Judgment of the Apex Court in Selvi’s case is categorical and clear about the aspects of the administration of polygraph test. The details of Law as laid down by the Apex Court in Selvi’s case (supra) would have to be followed by investigating agency, as also by the trial Court.
19.6.In the present case, the Petitioner having not consented to administration of a polygraph test and in fact having challenged the same, refusing the administration thereof, had categorically indicated that he does not wish to be subjected to a polygraph test, I am of the considered opinion that no polygraph test could be administered on the Petitioner.
19.7.Hence, I answer the above question by holding that no polygraph test can be administered without obtaining the consent of the person to whom the polygraph test is to be administered.
19.8.An application if any for such polygraph test has to be served on the said person on whom the polygraph test is to be administered, as also on the lawyer of the said person if so appearing. The effect and impact of the polygraph test and any answers given during the conduct of the polygraph test has to be clearly made known to the said person. The consent in writing to be obtained from such person before directing the administration of the polygraph test. Mere silence of the said person would not amount to consent on behalf of such person. If a person were to refuse the administration of polygraph test, no such polygraph test could be administered and even if administered, the result of the said test would be void and cannot be considered by a Court of Law.
20. ANSWER TO POINT NO.:13: Whether the order dated 15.10.2020 passed by the Trial Court dismissing the Recall Application was in accordance with Law?
21. ANSWER TO POINT NO.13: What order?
21.1. In view of the answers to the above question, the petition is partly allowed.
21.2. The order dated 14.09.2020 passed by the trial Court, directing the petitioner to furnish the password, passcode or Biometrics of his mobile phone and e-mail account is set-aside.
21.3. The order dated 23.09.2020 passed by the trial Court, directing the petitioner to undergo a polygraph test is set-aside.
Relied Upon Precedents
In Justice K. Puttaswamy(Retd.) V/ s Union of India reported in 2017(10) SCC 1, the Supreme Court of India held that ‘right to privacy’ is ‘an intrinsic element of the right to life and personal liberty under Article 21’ embedded in Part III of the Constitution of India. However, the 9 judge bench has unanimously held that the right to privacy is not absolute and can be curtailed if the following requirements are fulfilled:
5.11.1. legality, i.e. existence of a law;
5.11.2. legitimate state interest/ compelling state interest;
5.11.3. the action must be proportionate, i.e. there is a rational nexus between the object and means adopted to achieve them.
It also held that “prevention and investigation of crime” are among the legitimate interests of the state.
In State of Bombay V/s Kathi Kalu Oghad reported in AIR 1961 SC Page 1808, in para 11 which reads thus:
“To be a witness” means imparting of knowledge in respect of relevant facts by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to’ a person holding an enquiry or investigation”
In Selvi v. State of Karnataka (2010) 7 SCC 263, paragraph 262, the Supreme Court of India has held that compulsory administration of polygraph tests violates “right against self-incrimination” enshrined in Article 20(3) of the Constitution of India.
In State of Bihar v. P.P. Sharma [State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] , it was held that : (SCC p. 258, para 47) “47. … The investigating officer is an arm of the Law and plays a pivotal role in the dispensation WP No.11759/2020 of criminal justice and maintenance of Law and order. … Enough power is therefore given to the police officer in the area of investigating process and granting them the court latitude to exercise its discretionary power to make a successful investigation….”
Conclusion
The queries as answered above and relied upon ratios are self explanatory and need no further addition. However, it can be referred and relied by any investigating agency as a guideline to take proper precaution and the manner of investigation to be carried out at their end.
While, the person undergoing such investigation can take an informed decision as to what are their rights to defend on their data privacy and giving consent to such aspects be it such investigations are related to Income tax, GST,CBI, etc.
There are certain guidelines which have been incorporated in answers are commendable and can be a guiding factor they prima facie seem to be very reasonable and also comes with a strong legal footing.
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