Sunday, 14 March 2021

Whether court can direct accused to disclose his password to investigating officer?


 DISCLOSURE OF PASSWORD:

5.13. There are several provisions in the Code of Criminal Procedure, 1973 as well as the Indian Evidence Act, 1872 that empowered the Trial Court to direct the Petitioner to  disclose the password.

5.14. Section 139 of the Indian Evidence Act itself provides that a person may be summoned to produce a "document". The term "evidence" has been defined in Section 3 of the Indian Evidence Act inter al i a to mean " al l documents including electronic records". Therefore, the term "document" used in Section 139 of the Indian Evidence Act includes any electronic record in possession of the Petitioner. Thus, Section 139 of the Indian Evidence Act authorises the disclosure of the password by the Petitioner and hence the order dated 14.09.2020 does not abridge Petitioner's right to privacy under Article 21 of the Constitution of India.

5.15. That apart, Section 54-A of the Code of  Criminal Procedure, 1973 inter alia stipulates that, where a person is charged with committing an offence; and  his identification is necessary for the purpose of investigation of an offence, the Court may direct the person so arrested to subject himself to identification by any person as the Court deems fit.

5.16. In the present case, the password is nothing but an 'identification mark' of the Accused/ Petitioner by the service providers hosting his data. Therefore, the disclosure of the password is 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.

Karnataka High Court
Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021
Author: Suraj Govindaraj J
WP No.11759/2020.
Read full Judgment here: Click here

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?

 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.

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