Bound, as I am, by the law laid down on Oghad (supra) and being in respectful agreement with the view taken by Suraj Govindraj.J in Virendra Khanna (supra) and also having regard to the provisions of Section 45-A of the Evidence Act and Section 79A of the Information Technology Act (for short, “the IT Act”), I hold that
the prosecution has every right to seek that the accused hand over the mobile phones in question for the purpose of forensic examination by an agency identified by the Central Government as ‘Examiner of Electronic Evidence’ under Section 79-A of theInformation Technology Act, 2000. { Para 8}
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BAIL APPL. NO. 248 OF 2022
P.GOPALAKRISHNAN ALIAS DILEEP Vs STATE OF KERALA
PRESENT
MR. JUSTICE GOPINATH P.
Dated: 29th day of January 2022
I had by order dated 22.1.2022 in the above bail applications granted an interim
order, protecting the petitioners from arrest on a specific condition (among others) that
the petitioners shall fully co-operate with the investigation. On 28.1.2022, an application
numbered as Crl.M.A. No.2 of 2022 was filed in BA No. 248 of 2022, alleging that the
petitioners were not cooperating with the investigation. Primarily, it is pointed out that
despite demand, certain mobile phones which were being used by the petitioners were
not handed over to the investigation team. The prayer in Crl.M.A. No.2 of 2022 is for a
direction to the petitioners in these bail applications to forthwith produce the following
mobile phones: -
(1) Mobile Phone bearing IMEI No.356723080949446 of Apple Company;
(2) Mobile Phone bearing IMEI No.356728111838724 of Apple Company;
(3) Mobile Phone bearing IMEI No.868409043310506 of VIVO Company;
(4) Mobile Phone bearing IMEI No.352544473256346;
(5) Mobile Phone bearing IMEI No.864644032210833 of Huawei-Honor;
(6) Mobile Phone bearing IMEI No. 868384058791806 of Redmi Company; and
(7) Mobile Phone bearing IMEI No.863607031095365 of Huawei Company.
When Crl.M.A. No.2 of 2022 was taken up for consideration yesterday, the learned counsel
appearing for the petitioners sought time to place an objection and also for time to argue
this matter. In view of the urgency pointed out by the learned Director General of
Prosecutions, this matter was directed to be listed today.
2. I have heard Sri.T.A.Shaji, Senior Advocate and Director General of
Prosecutions, assisted by Sri.P.Narayanan, Senior Public Prosecutor for the State and
Sri.B. Raman Pillai, Senior Advocate appearing for the petitioners in BA Nos. 248/2022,
288/2022 & 300/2022, assisted by Sri.Philip T. Varghese.
3. The learned Senior Counsel for the petitioners would point out that a
notice had been issued to the petitioners under Section 91 of the Code of Criminal
Procedure (for short, “Cr.P.C.”), calling upon them to produce the aforesaid mobile
phones. It was submitted with reference to the decision of the Supreme Court in State
of Gujarat v. Shyamlal Mohanlal Choksi & Another; AIR 1965 SC 1251 and the
decisions of this Court in Gopalakrishnan Nayanar & Another v. Sasidharan Nambiar
& Another (1996) 1 KLT 83 and Kurian v. Joseph & Others, 2021 (2) KHC 124 that the
notice under Section 91 of Cr.P.C. was illegal and unsustainable. It is also suggested
that any direction to produce the mobile phones would amount to the violation of the
right against self-incrimination guaranteed under Article 20(3) of the Constitution of
India. It is submitted that some among the phones have been sent to a forensic expert
by the petitioners themselves for analysis and data retrieval. It is submitted that the
data so retrieved can be handed over for the purpose of investigation. It is also
submitted that the petitioners are facing a mighty Police force in a case where the defacto
complainant is himself a part of the very agency which is investigating the
alleged offence and that the petitioners have no faith in handing over the phones to
the investigating agency. It is submitted that personal information (having no relation to the case on hand) and privileged communications may also be revealed if the
phones are directed to be handed over. It is submitted that the phones had been sent
for data retrieval, in order to show the falsity of the allegations now raised against the
petitioners and that the phones had been sent for data retrieval even before the
present case was registered.
4. The learned Director General of Prosecutions vehemently submits that
there is no question of violation of Article 20(3) of the Constitution of India as the
direction to produce a document or a thing does not amount to self-incrimination. It is
submitted that the investigating agency has every power to ask for the production of
the mobile phones in question as the data contained in the same has to be verified for
the purpose of investigation. It is further submitted that the Karnataka High Court had
recently considered this issue with reference to all the earlier judgments of the
Supreme Court in Virendra Khanna v. State of Karnataka and Others, 2021 SCC
Online Karnataka 5032.
5. Having considered the rival submissions, I am of the view that the issue
raised is no longer res integra in the light of the law laid down in State of Bombay v.
Kathi Kalu Oghad, AIR 1962 SC 1809. In that case two sets of appeals were considered
by the Supreme Court. In one, namely Criminal Appeal 146 of 1958 the question was
whether the obtaining of specimen handwritings from the accused to prove the case
against him would amount to self-incrimination while in the other appeals namely
Criminal Appeal Nos. 110 & 111 of 1958, the question was whether the taking of
impressions of palms and fingers of the accused for comparison with images of palms
and fingers retrieved from a shop that was burgled would amount to selfincrimination.
The issue was considered with reference to Article 20(3) of the
Constitution of India. It would not be out of place to mention that Oghad (supra) was
decided by a bench of 11 Judges, particularly to re-examine some of the propositions
laid down in M.P Sharma v. Satish Chandra, AIR 1954 SC 300. To the extent it is
relevant, it was held: -
“(1) An accused person cannot be said to have been compelled to be a
witness against himself simply because he made a statement while in
police custody, without anything more. In other words, the mere fact of
being in police custody at the time when the statement in question was
made would not, by itself, as a proposition of law, lend itself to the
inference that the accused was compelled to make the statement, though
that fact, in conjunction with other circumstances disclosed in evidence in
a particular case, would be a relevant consideration in an enquiry whether
or not the accused person had been compelled to make the impugned
statement.
(2) The mere questioning of an accused person by a police officer,
resulting in a voluntary statement, which may ultimately turn out to be
incriminatory, is not “compulsion”.
(3) “To be a witness” is not equivalent to “furnishing evidence” in its
widest significance; that is to say, as including not merely making of oral
or written statements but also production of documents or giving
materials which may be relevant at a trial to determine the guilt or
innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or
specimen writings or showing parts of the body by way of identification
are not included in the expression “to be a witness”.
(5) “To be a witness” means imparting knowledge in respect of relevant
facts by an oral statement or a statement in writing, made or given in
court or 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.”
Oghad (supra) was considered and relied on by Ashok Bhushan J. in K.S. Puttaswamy
(Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 to hold that Section 33 of the Aadhaar
Act was constitutionally valid. It has also been relied upon and followed by a three-
Judge Bench in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1 in considering the
question as to whether the giving of a voice sample would amount to selfincrimination
under Article 20(3) of the Constitution.
6. The High Court of Karnataka in Virendra Khanna (supra) considered the
issue both in the context of Article 20(3) of the Constitution and also in the context of
the Right to Privacy and held:-
“Would providing a password, passcode or Biometrics amount to selfincrimination
or testimonial compulsion?
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.
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.
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.
If the submission of Mr. Hasmath Pasha, learned Senior counsel would be
accepted, the same would result in a chaotic situation:
No blood samples can be taken;
no sample for DNA analysis could be taken;
no handwriting samples can be taken;
no other body sample for the purpose of DNA analysis could be
taken
No search of a house or office could be undertaken.
The data of a laptop or computer or server cannot be accessed by
the Investigating officer.
Offences like cyber crime could never be investigated.
Offences like pornography, child pornography which are more
often than not, on the internet, could not be investigated.
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.
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.
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.
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.
Would providing of password, passcode or Biometrics violate the right
to privacy of a person providing the said password, passcode or
Biometrics?
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
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.
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.
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.”
7. In exercise of the power under Section 79-A, the Central Government
has notified certain agencies as ‘Examiner of Electronic Evidence’. In my view, only
such agencies can be allowed to conduct a forensic analysis of a mobile phone and the
petitioners cannot entrust the phones to any person of their choice to examine or
extract data from the phones in question. Following the introduction of Section 79-A,
the Indian Evidence Act, 1872 has also been amended and Section 45A has been
inserted making the opinion of the ‘Examiner of Electronic Evidence’ a relevant fact.
Section 79-A of the Information Technology Act, 2000 reads as follows:-
“Central Government to notify Examiner of Electronic Evidence. -The
Central Government may, for the purposes of providing expert opinion
on electronic form evidence before any court or other authority specify,
by notification in the Official Gazette, any Department, body or agency
of the Central Government or a State Government as an Examiner of
Electronic Evidence.
Explanation. -For the purposes of this section, "electronic form
evidence" means any information of probative value that is either
stored or transmitted in electronic form and includes computer
evidence, digital audio, digital video, cell phones, digital fax machines.”
8. Bound, as I am, by the law laid down on Oghad (supra) and being in respectful agreement with the view taken by Suraj Govindraj.J in Virendra Khanna (supra) and also having regard to the provisions of Section 45-A of the Evidence Act and Section 79A of the Information Technology Act (for short, “the IT Act”), I hold that
the prosecution has every right to seek that the accused hand over the mobile phones in question for the purpose of forensic examination by an agency identified by the Central Government as ‘Examiner of Electronic Evidence’ under Section 79-A of theInformation Technology Act, 2000.
9. At this point, the learned counsel appearing for the petitioners would
submit that in respect of the phone mentioned as Sl. No.(4) above, bearing IMEI
No.352544473256346, the make of the phone in question is not indicated. It is
submitted that the petitioners are unable to identify the phone with the aforesaid
IMEI number alone.
10. Taking into account the submission of the learned counsel for the
petitioners, there will be a direction that the mobile phones mentioned as Sl.Nos. (1),
(2), (3), (5), (6) & (7) above shall be produced in a sealed box before the Registrar
General of this Court by 10.15 am on 31.01.2022. The Learned Senior Public
Prosecutor shall get instructions from the investigating officer regarding the phone
with IMEI No.352544473256346.
Post these matters at 1.45 P.M on 31.01.2022.
Sd/-
GOPINATH P.
JUDGE
29.01.2022
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