Sunday, 14 March 2021

When the court can permit the investigating officer to hack into the smartphone and/or email account of the accused?


 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?{Para 16}

 16.1. Though not argued or contended this Court would also have to take into consideration the possibility of the accused not co- operating inspite of above directions having been issued and/or providing apassword, passcode which is incorrect.

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.

Karnataka High Court

Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021
Author: Suraj Govindaraj J
WP No.11759/2020.

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