On Monday, a Delhi Court held that an accused could not be forced to provide the password of his electronic gadgets, including mobile and computer, after they are seized by an investigation agency as it may amount to compelling him to give self-incriminating testimony, reports Amit Anand Choudhary.
Invoking the SC's verdict in the case of narco-analysis/lie detection test in which the court had held that such procedure involved personal knowledge of the accused and it can't be done without his nod, special judge N K Laka (PC Act) said that same logic applies to a password as it also involves import of personal knowledge. The court rejected the CBI's plea seeking its order to an accused to provide password.
The Court, however, said the agency is free to seek the help of a specialised agency or person to crack the password to access the data of computers. He said the accused has a fundamental right to maintain silence as per Article 20(3) of the Constitution and forcing him to reveal password would be violative of the right.
"Further, in the Selvi case, it was held by the apex court that when statements are likely to lead to incrimination by themselves or furnish a link in the chain of evidence, then bar of Article 20(3) of the Constitution would apply. In the instant case also, the investigating officer is seeking to find out further link in the chain of evidence by utilising the data which are lying in the computer system of the accused. Therefore, this cannot be allowed being hit by Article 20(3)," the judge said.
"No doubt, a password does not itself constitute a 'self-incriminating testimony' against an accused who gives such password, but from practical point of view, the said password alone is not the sole objective of the IO and in fact he wants to use it for the purpose of accessing data which is contained in a computer system or a mobile phone which is/are seized from the accused and, therefore, the said password is to be taken as integral part of the said computer system/mobile phone which is/are not severable from it. While considering the status of such information being incriminating or not, this court cannot consider password alone in isolation," he said.
The judge, however, differentiated between biometrics and password in view of the recent enactment of Criminal Procedure (Identification) Act, 2022 as per which powers have been given to police and the magistrate to give direction to the accused in certain cases to provide his biometrics as mentioned in the definition of 'measurement'.
The court noted the new law did not mention the words 'password' and/or user ID in the definition of "measurement". "Such data may or may not contain incriminating evidence but if there is an apprehension that it may probably contain incriminating information, the accused is within his right to maintain silence as per Section 161(2) CrPC."
The court made it clear that electronic records containing private data of an accused is not immune from being scrutinised by investigating agency and there can be a reasonable restriction on the right to privacy of accused in the larger interest of the society.
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