Mere providing access to a Smartphone or E-mail account would not amount to self-incrimination: Kerala High Court

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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 Court observed.

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.

The above observations were made by the single bench of the Kerala High Court comprising of Justice Gopinath P. while considering the bail application of the petitioners. Earlier, the petitioners were granted interim bail by this Court on a specific condition that the petitioners shall cooperate with the investigation.

Thereafter, the Investigating Officer during investigation had issued a notice under Section 91 CrPC to the petitioners to hand over various mobiles phones used by the petitioners for the purpose of investigation but the petitioners did not comply. Consequently, a miscellaneous application came to be filed in the bail application alleging that the petitioners are not fully cooperating with the investigation.

Submissions of the Petitioners:

The petitioners submitted that 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, notice under Section 91 of Cr.P.C. was illegal and unsustainable.

It was 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 was submitted that some among the phones have been sent to a forensic expert by the petitioners themselves for analysis and data retrieval and the data so retrieved can be handed over for the purpose of investigation.

It was also submitted that the petitioners are facing a mighty Police force in a case where the de- facto 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 was 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.

Submissions of the Respondents:

The learned Director General of Prosecutions vehemently submitted 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 was further 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 was 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.

Observations of the Court:

At the outset, the Court referred to the law laid down in State of Bombay v. Kathi Kalu Oghad, AIR 1962 SC 1809 wherein 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.

The Court noted that the judgment in 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.

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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 self- incrimination under Article 20(3) of the Constitution, the Court said.

The Court also referred to the judgment rendered by the High Court of Karnataka in Virendra Khanna v. State of Karnataka and Others, 2021 SCC Online Karnataka 5032 considered the issue both in the context of Article 20(3) of the Constitution and also in the context of the Right to Privacy wherein it was held:

Would providing a password, passcode or Biometrics amount to self- incrimination 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 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.

The Court after referring to Section 79-A of the IT Act, 2000 opined that agencies notified as ‘Examiner of Electronic Evidence’ can only 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.

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The Court noted that 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.

After analyzing the law and the judgments the Court held:

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 the Information Technology Act, 2000.

Click here to download/read the Order

Case Details:
P. Gopalakrishnan Alias Dileep vs State Of Kerala | BAIL APPL. NO. 248 OF 2022
Coram: Justice Gopinath P.
M/S B.RAMAN PILLAI (SR).along with SUJESHMENON V.B., PHILIP T.VARGHESE, THOMAS T.VARGHESE, ACHU SUBHA ABRAHAM,V.T.LITHA, K.R.MONISHA, NITYA R., Advocates for the petitioners
PUBLIC PROSECUTOR for the respondents
Date of Judgment: 29-01-2022