Can Accused be Compelled by Investigating Agency to Reveal Password of Electronic Device ?
Delhi High Court bench of Justice Naresh Kumar Laka was dealing with the application where question arose on the point of power of investigating agency (Police) to seek password (user ID) of the computer system seized from the accused along with password of a Tally Software which was being used by the accused in the said computer system.In this case, during the course of investigation, a computer system was seized by the CBI from the custody of accused and when it was sent to CFSL agencies, the data of the said computer system could not be obtained for want of password and user ID.Accordingly, application has been filed seeking a direction to the accused to provide the same.The Court stated that an accused can be asked or directed to give his biometrics (in the form of his finger impressions, face or iris recognition) for the purpose of opening of his electronic device by the IO or the court.The bench opined that “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 the 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.”The Court opined that there is no exception made in the Cr.P.C that on account of interference in the right of privacy, a piece of evidence (whether electronic record or document) cannot be seized or produced before a court of law.Even there are various provisions under Cr.P.C. which permits interference in the right of privacy of an accused like arrest of the accused, search at the house of accused, detention and punishment to the accused which, in one way or the other, involves his right of privacy or free life but only on account of such interference, the right of the State (including the Investigating Agency) cannot be undermined which have been enacted to establish law and order, peace, public order and safety of its citizens.The bench stated that “the application of the CBI seeking password/User ID of the computer system and Tally Software of the accused is dismissed as the accused cannot be compelled to give such information and in this regard he is protected by Article 20(3) of the Constitution of India as well as Section 161(2) of Cr.P.C. “
Dr. Ajay Kummar Pandey( LLM, MBA, (UK), PhD, AIMA, AFAI, PHD Chamber, ICTC, PCI, FCC, DFC, PPL, MNP, BNI, ICJ (UK), WP, (UK), MLE, Harvard Square, London, CT, Blair Singer Institute, (USA), Dip. in International Crime, Leiden University, the Netherlands )Advocate & Consultant, Supreme Court of India & High Courts4C Supreme Law International, Delhi, NCR. Mumbai & DubaiTel: M- 91- 9818320572. Email: email@example.com