Sunday, 14 March 2021

Whether court directing accused to give password of his social media account amounts self-incrimination or testimonial compulsion?

 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.

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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