TaxTMI 
TaxTMI 
2021 (3) TMI 1486
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.... nature in quashing the order dated 14-09-2020 as a part of Annexure-E in directing the Petitioner to co- operate for unlocking the mobile phone, passed in Spl. C.C. No. 529/2019 on the file of XXXIII Additional City Civil and Sessions Judge and Special Court for NDPS cases Bangalore City, which is arising out of Crime No.588/2018 on the file of the first respondent police as illegal and abuse of process of Law. FACTS 2. In the Petition, it is contended that: 2.1. The Petitioner is an IT Engineer, having studied in M/s RV College of Engineering, Bangalore. He was selected as Software Engineer, during the process of on-campus recruitment by Accenture, IT company, Bangalore, where he worked for one year and thereafter resigned to do his self avocation of organising events and parties in 5-star hotels and other events by obtaining licence and permission from the police department. 2.2. It is claimed that the nature of work carried out by the Petitioner is only to book the participants for the event and the other arrangements of food and drinks are made by the hotel management, and he had no control of it and even he was not allowed to carry anything. 2.3. The last event....
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....his mobile phone and also for getting opened two more E-mail accounts belonging to him. This application copy was not served either on the counsel for Petitioner or on Petitioner, and as soon as it was filed, an order dated 23-09-2020 was passed to send the Petitioner for Polygraph test as prayed in the Application, and it was ordered to the Investigation officer of CCB Police Bangalore to take the Petitioner for Polygraph test with proper escorts by 28-09-2020. 2.11. It is contended that before passing the order dated 23-09-2020 directing a Polygraph test, no opportunity was given to Petitioner or his counsel to defend the Application filed by CCB police for Polygraph test and thereby, the order for Polygraph test was not known to Petitioner or his counsel. 2.12. It is only on 03-09-2020, the Petitioner's father was told by his friends that in Media it is being reported that the Court has permitted a Polygraph test of the Petitioner. Petitioner's father immediately informed the counsel for Petitioner, and thereafter on verification, it was found to be true and the order dated 23-09-2020 had been passed without the Petitioner's knowledge. 2.13. On 3-10-2020, the Petitioner....
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....on, the Petitioner was apprehended and taken into custody. From the possession of the Petitioner incriminating evidence in the form of Mobile Phone, Laptop and other material objects seized and the property form prepared. 3.2. For the purpose of the investigation, it is necessary to open the Mobile Phones, other electronic gadgets seized from the Petitioner and the e-mails. The same is protected by passwords. Investigation Officer called upon the Petitioner to furnish the Passwords. The Petitioner refused to disclose the password of his Mobile Phone and e-Mail addresses. The Hon'ble Trial Court, by an order dated 04.09.2020, directed the Petitioner to co- operate and furnish the password to the investigating officer. 3.3. The order of the Trial Court was communicated to the Petitioner requesting him to furnish the password. In spite of the direction by the Trial Court the Petitioner did not furnish the password. On the contrary, he tried to contend that he has already provided the password, without having so provided. 3.4. It is on that basis that, Respondent No.2 filed an Application seeking permission of the Trial Court to subject the Petitioner to Polygraph test and the....
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....e judgement of the Hon'ble Supreme Court in the case of Selvi V/s State of Karnataka reported in 2010(7) SCC page 263, wherein the apex court has clearly laid down that subjecting the accused to a Polygraph Test is violative of 'right against self-incrimination' which is a fundamental right guaranteed under article 20 clause (3) of the Constitution, he relies on the following paragraphs of the said judgement: 184. Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject's mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject's physiological responses are directly correlated to mental faculties. Through lie detection or gauging a subject's familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case....
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....ion". The following definition of "cognition" has been articulated to explain this position [cited from Ronald J. Allen and M. Kristin Mace, "The Self-Incrimination Clause Explained and its Future Predicted" [94 Journal of Criminal Law and Criminology 243-293 (2004)], Journal of Criminal Law and Criminology, Fn. 16 at p. 247]: "...'cognition' is used herein to refer to these intellectual processes that allow one to gain and make use of substantive knowledge and to compare one's 'inner world' (previous knowledge) with the 'outside world' (stimuli such as questions from an interrogator). Excluded are simple psychological responses to stimuli such as fear, warmness, and hunger: the mental processes that produce muscular movements; and one's will or faculty for choice. ..." (internal citations omitted) The abovementioned authors have taken a hypothetical example where the inferences drawn from an involuntary polygraph test that did not require verbal answers, led to the discovery of incriminating evidence. They have argued that if the scope of the Fifth Amendment extends to protecting the subject in respect of "substantive results of cognition", then reliance....
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....tect persons who may be compelled to undergo the tests in the course of administrative proceedings or any other proceedings which may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others. 191. In order to account for these possibilities, we must examine 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". We will proceed with this inquiry with regard to the various dimensions of "personal liberty" as understood in the context of Article 21 of the Constitution, which lays down that: "21. Protection of life and personal liberty.-No person shall be deprived of his life or personal li....
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....the course of administering the impugned techniques are not limited to physical confinement and the extraction of bodily substances. All the three techniques in question also involve testimonial responses. Secondly, most of the abovementioned cases were decided in accordance with the threshold of "procedure established by law" for restraining "personal liberty". However, in this case we must use a broader standard of reasonableness to evaluate the validity of the techniques in question. This wider inquiry calls for deciding whether they are compatible with the various judicially recognised dimensions of "personal liberty" such as the right to privacy, the right against cruel, inhuman or degrading treatment and the right to fair trial. 226. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person's mental processes is not provided for under any statute and it most certainly comes into conflict with the "right against self-incrimination". However, this determination does not account for circumstances where a person could be subjected ....
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.... in a case of Mr. Justice K.S. Puttaswamy V/s Union of India reported in 2017 (10) SCC page 1. Violation of Principles of natural Justice: 4.7. Sections 53 and 311-A of the Code of Criminal Procedure also do not empower any Court or Magistrate to give direction to the accused during the investigation to give the password to unlock the mobile and thereafter to use the data available in mobile by the Investigation Officer in the investigation or trial of the accused. 4.8. Such an order could never have been passed, much less without hearing the Petitioner or his counsel; the said order is violative of the principles of natural justice, more so the most fundamental Principle of 'Audi Alterm Partem'. 4.9. The said order is no order in the eye of Law as such an application was filed for recall of the order, the Court ought to have rectified its mistake taking into consideration the Judgment of the Apex Court. However, the Court did not. Right to Privacy 4.10. Insisting the Petitioner to unlock his mobile phone which contains his personal information is violative of 'Right to Privacy' as held by the Hon'ble Supreme Court in the case of Mr. Justice K. S. Puttaswamy's cas....
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....ividual to choose who she wishes to interact with; (viii) behavioural privacy which recognises the privacy interests of a person even while conducting publicly visible activities. Behavioural privacy postulates that even when access is granted to others, the individual is entitled to control the extent of access and preserve to herself a measure of freedom from unwanted intrusion; and (ix) informational privacy which reflects an interest in preventing information about the self from being disseminated and controlling the extent of access to information. 4.12. There is no specific law, enabling the taking away his right to privacy, or for a direction to be given by any court, either to give password of his mobile or to unlock the same and further to use the data contained in his mobile for the purpose of investigation. 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. ....
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.... individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. This does not mean, as some have suggested, that each police station must have a 'station house lawyer' present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time." 4.16. Insisting the accused for decryption of data contained in his mobile phone amounts to forcing him to reveal his personal....
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.... 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 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. 5. Per Contra Shri VeeranaTigadi learned Special Public Prosecutor submitted as under: 5.1. Mobile phones, laptops and other materials were seized from the Petitioner. All the electronic gadgets obtained from the Petitioner are password protected. 5.2....
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.... way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of Law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution-makers were aware of the existing Law, for example, Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act (33 of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so: "Measurements" include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under Section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by Se....
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....e has given his statements in Court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observations of this Court in Sharma case [(1954) SCR 1077] that Section 139 of the Evidence Act has no bearing on the connotation of the word "witness" is not entirely well-founded in Law. It is well established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court....
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.... the information, are unconstitutional as coming within the prohibition of clause (3) of Article 20, such information would amount to furnishing evidence. This Court in Sharma case was not concerned with pronouncing upon the constitutionality of the provisions of Section 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution at the trial of the giver of the information for an alleged crime. The question whether Section 27 of the Evidence Act was unconstitutional because it offended Article 14 of the Constitution was considered by this Court in the case of State of Uttar Pradesh v. Deomen Upadhyaya. It was held by this Court that Section 27 of the Evidence Act did not offend Article 14 of the Constitution and was, therefore, intra vires. But the question whether it was unconstitutional because it contravened the provisions of clause (3) of Article 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading t....
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.... otherwise. (6) "To be a witness" in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made. 5.9. The disclosure of the password by the Petitioner in terms of the order dated 14.09.2020 by itself does not incriminate the accused. Therefore, the disclosure of password can be viewed as anything but self-incrimination within the meaning of Article 20(3) of the Constitution of India. 5.10. The content of Section 161(2) of the Code of Criminal Procedure, 1973 is similar to Article 20(3) of the Constitution of India. In fact, Section 161(2) of the Code of Criminal Procedure, 1973 merely extends right against "self-incrimination" to suspects and witnesses i....
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....s sanctioned by Law under Section 54-A of the Code. 5.17. The disclosure of password is in the nature of giving specimen signatures or handwriting. Therefore, the disclosure of password can also be ordered under Section 311-A of the Code of Criminal Procedure, 1973. 5.18. In Ritesh Sinha v. State of Uttar Pradesh (2019) 8 SCC 1, the Supreme Court of India held that the Magistrate could order the collection of voice sample under Section 311- A of the Code of Criminal Procedure, despite there being no express provision to that effect, having regard to existing realities and imminent necessity of present situation. Therefore, given the fact that the disclosure of password is akin to giving specimen signature, disclosure can be ordered under the aforesaid provision. Hence, the order dated 14.09.2020 passed by the Trial Court is sanctioned by Law. In this regard, he relied upon paragraphs 5, 20 and 23 thereof, which are hereunder reproduced for easy reference: 5. Two principal questions arose for determination of the appeal which have been set out in the order of Ranjana Prakash Desai, J. dated 7-12-2012 [Ritesh Sinha v. State of U.P., (2013) 2 SCC 357 : (2013) 2 SCC (Cri....
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....he matter. 5.19. He relied on the decision of the Apex court in Sudhir Chaudhary v. State (NCT of Delhi), (2016) 8 SCC 307, more particularly para 7, 8, 9, 10, 11, 13 thereof which are hereunder reproduced for easy reference: 7. The order of the ACMM was questioned before the Delhi High Court. By a judgment and order dated 11-2-2015 [Sudhir Chaudhry v. State, 2015 SCC OnLine Del 7457], a learned Single Judge held that the purpose of a voice sample is to facilitate the process of comparing it with a recorded conversation. The voice sample is not a testimony in itself since it only constitutes what was described as "identification data". A voice sample, in the view of the High Court is not a substantive piece of evidence. The High Court rejected the submission that the direction to furnish a voice sample was in violation of the fundamental right under Article 20(3) of the Constitution since firstly, the appellants had not been forced or coerced into furnishing such a sample since it was they who had furnished their consent; secondly, a voice sample is not evidence since its purpose is only to compare it with the questioned text. In the view of the High Court, once the app....
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....urnment to the Respondent to seek instructions from the expert concerned whether or not a sample of words in such number as the expert may suggest would suffice for the experts to give their opinion by scientific voice sampling methods. Accordingly, a brief note has been filed on the record stating that: "That the experts of the Central Forensic Science Laboratory (CFSL) have informed that two separate texts/scripts have been prepared in the laboratory from each speaker/accused, which are different from the received transcripts. That the text/script prepared by the CFSL experts cannot be provided to the petitioners in advance as there is apprehension that the Petitioner may practice the texts/scripts thereby adversely affecting the voice sampling examination. Accordingly it is submitted that the sample/modal text/script can only be supplied to the speakers/accused if this Hon'ble Court deems it appropriate." 11. By an order of this Court dated 1-7-2016 [Sudhir Chaudhary v. State (NCT of Delhi), 2016 SCC OnLine SC 1707, wherein it was directed: "Arguments heard. Judgment reserved. In the meantime, the investigating officer shall file the transcrip....
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....t "prevention and investigation of crime" are among the legitimate interests of the state. The disclosure of the password is sought for investigating crimes under the NDPS Act. Therefore, the order dated 14.09.2020 pursues a legitimate aim. 5.21. The action is proportionate because, it is merely seeking disclosure of the password in aid of the investigation. There is a rational nexus with the objective and means to achieve the objective. 5.22. 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. The order dated 23.09.2020 merely ordered the Petitioner to undergo a polygraph test. There is no order whatsoever for the test to be compulsorily conducted on the Petitioner. Thus, if such a test is conducted with the Petitioner's consent, there will be no infraction of Article 20(3) of the Constitution of India. 5.23. The investigating officer has acted within the four corners of Law so as to conduct proper investigation; hence this Court ought not to interfere in the matter by relying....
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....d in rare cases where there is a clear abuse of power and non-compliance of the provisions falling under Chapter XII of the Code of Criminal Procedure requiring the interference of the High Court. In the initial stages of investigation where the Court is considering the question of grant of regular bail or pre-arrest bail, it is not for the Court to enter into the demarcated function of the investigation and collection of evidence/materials for establishing the offence and interrogation of the accused and the witnesses. Whether direction to produce the transcripts could be issued 68. The contention of the appellant is that it has not been placed before the Court as to what were the questions/aspects on which the appellant was interrogated on 19-12-2018, 1-1-2019 and 21-1-2019 and the Enforcement Directorate has not been able to show as to how the answers given by the appellant are "evasive". It was submitted that the investigating agency Enforcement Directorate cannot expect the accused to give answers in the manner they want and the investigating agency should always keep in their mind the rights of the accused protected under Article 20(3) of the Constitution of....
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.... and/or electronic equipment? 7.10. Whether the order dated 14.09.2020 passed by the Trial Court directing the Petitioner to co-operate with the investigating agency and provide a password to open the smartphone and email account is proper? 7.11. 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? 7.12. Whether the order dated 15.10.2020 passed by the Trial Court dismissing the Recall Application was in accordance with Law? 7.13. What order? 8. INTRODUCTION: 8.1. Today technology has become all-pervasive, a telephone which was used in the past for communication now called a landline has given way to sophisticated instruments like smartphones which have computing powers probably thousand times more than that of computers of 90's leading to the mobile phone or a smartphone becoming the central device for running the affairs of the person. 8.2. The mobile phone, now called a smartphone, is truly smart and today is used for all purposes, one of which is as a phone for conversing with people. It ma....
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....s continuously maintained; (k) "computer resource" means computer, computer system, computer network, data, computer data base or software; (l) "computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions; (o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer; (r) "electronic form" with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micr....
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....nd used for the purpose of evidence, essentially even at that point of time what it referred to was the data in the said document viz., the printed or written word in the document, therefore whether documentary evidence or electronic evidence essentially what one is dealing with is data. 8.11. It is this data that is required to be accessed by an Investigating officer for the purposes of carrying out an investigation; this data is required for the purposes of being referred to while a charge sheet is being laid, it is the data that would be considered by a Court of Law during the course of evidence and/or rendering of the Judgment. 8.12. In the past, letters, postcards, Island letters, telex, fax were used for the purpose of communication. This communication essentially resulted in a hard copy being sent or printed at the recipient's end. This document, in its physical form, was considered, relied upon as original document during the investigation process and later-on produced and marked during the course of evidence being led in a proceeding and considered by a Court. 8.13. Smartphones and/or computer equipment are becoming ubiquitous, hard copies/print outs/ books, f....
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..... 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? 12.1. The requirement for a search of a smartphone and/or electronic instrument could arise under two circumstances. 12.1.1. Emergent circumstances 12.1.2. During the regular ordinary course of the investigation 12.2. It is in light of these two circumstances that the nature and methodology of a search would have to be considered. 12.3. The Cr.P.C. provides a framework....
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....n 94(1) of Cr.P.C., thereof. 12.9. In terms of Section 100 of Cr.P.C., in the event of any place being closed, any person residing in or being in charge of such place shall on demand of the officer or other person executing the warrant and on the production of the warrant allowing free ingress thereto. As also afford all reasonable facilities for a search therein. In the event of any person suspected to be concealing any article, a search of such person could also be made subject to however restrictions that a search of any woman could be made by a woman. 12.10. During the process of search in terms of Section 102 of Cr.P.C., any particular item could be seized by a person conducting a search on fulfilling certain criteria. 12.11. In view of the above, the said Chapter VII provides several powers to the Police or Magistrates, which could include the power to search and seize a smartphone, computer, server or any other electronic item or equipment. 12.12. A search and seizure of a smartphone can also be permitted in terms of the above provisions as contained in the Cr. P.C. As observed above, in terms of Section 100 of Cr.P.C., even a closed place can be searched by the ....
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....or organization searched, more so when a search so conducted would also impinge on the right to privacy of such a person. 12.19. In terms of Section 165 of Cr.P.C., if the investigating officer during the course of investigation has reasonable grounds for believing that anything required for the purpose of investigation would be found in a place within the limits of his police station of which he is incharge of or attached to, he may without delay after recording in writing the grounds for belief and specifying in writing as far as possible, the thing for which search is to be made, search any place within his limits of jurisdiction. However, the copies of any record made to conduct such a search would have to be sent to the Magistrate empowered to take cognizance of an offence and a record of the same. Though a search without reasons and without following the procedure may be illegal, the illegality of the search would not make any seizure made during the search inadmissible as held by the Hon'ble Apex Court in the case of Dr. Pratap Singh vs. Director of Enforcement Foreign Exchange Regulation and others reported in (1985) 3 SCC 72. However, the Courts would have to be cautiou....
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....quired 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 circumsp....
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....nt. 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 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 ....
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....d 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 availab....
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....ictly 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 bee....
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....cy 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.....
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....uld 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 pr....
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.... 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 s....
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....ve 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....
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....t 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? 20.1. An application was filed by the accused to recall the order dated 23.09.2020 passed by the trial Court directing the petitioner to undergo a polygraph test. 20.2. On account of the answer given to Point No.12 above, I am of the considered opinion that the trial Court ought to have taken into consideration the decision of the Hon'ble Apex Court in Selvi's case (supra) and once the trial Court had been informed and/or it was brought to the notice of the trial Court that on account of the decision of the Hon'ble Apex Court a polygraph test could not be condu....