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

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Whether Investigating Agency Can Retain Username/Password Of Accused Person's Social Media Platform?

The Facebook and Youtube accounts are important aspects of the Petitioner's business to carry out his day-to-day business, the Respondent-police cannot on the ground of investigation block the same as as to come in the way of Petitioner carrying out his day-to-day business. For the purpose of investigation only the integrity of the data is required to be preserved and that can be so done by downloading the relevant content from the Facebook and Youtube account of the Petitioner in the presence of the Petitioner after conducting a proper mahazar with W.P.No.11169 of 2020 the help of qualified technical persons. On such downloading, the data downloaded can be kept in safe custody for the purpose of investigation. 13.9. I answer point no. (iv) by holding that an investigating agency can not retain the user name and password of social media/digital platform like Facebook and YouTube pending investigation, the investigation agency can download the data required from such account and thereafter has to give back the changed credentials to the person who owns the said social media. The Respondents are therefore directed to handover new login credentials of W.P.No.11169 of 2020 the Facebook and Youtube account of the Petitioner within seven days from the date of receipt of certified copy of the order.

Karnataka High Court

Rakesh Shetty vs State Of Karnataka on 5 November, 2020

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