Karnataka High Court
Mr. Virendra Khanna vs State Of Karnataka By: on 12 March, 2021
Author: Suraj Govindaraj
1
WP No.11759/2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 11759 OF 2020 (GM-RES)
BETWEEN:
MR. VIRENDRA KHANNA
S/O SRI RAM KHANNA
AGED ABOUT 35 YEARS
RESIDING AT NO.301, PIYARSON WEST
LANGFORD ROAD, 1ST CROSS
RICHMOND, BANGALORE - 08 ... PETITIONER
(BY SRI. HASHMAT PASHA, SR. COUNSEL FOR
SRI. NASIR ALI, ADVOCATE-PH)
AND:
1. STATE OF KARNATAKA BY:
BANASAWADI POLICE, BANGALORE-560043
2. POLICE INSPECTOR, CCB POLICE,
BANGALORE, NT PET
BANGALORE-560002 ... RESPONDENTS
(BY SRI. VEERANNA G. TIGADI, SPP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSITUTION OF INDIA AND UNDER SECTION 482 OF
THE CR.P.C., PRAYINT TO QUASH THE ORDER DATED 23.09.2020
VIDE ANNEXURE-E WHICH IS RE-AFFIRMED BY ORDER DATED
2
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15.10.2020 VIDE ANNEXURE-H PASSED IN SPCL.C.C.
NO.529/2019 ON THE FILE HON'BLE XXXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL COURT FOR NDPS CAES,
BANGALORE CITY, WHICH IS ARISING OUT OF CRIME
NO.588/2018 ON THE FILE OF R-1 BANASWADI POLICE,
BANGALORE, AS AN ABUSE OF PROCESS OF LAW AND ETC.
THIS WRIT PETITION COMING ON FOR FURTHER
ARGUMENTS AND HAVING BEEN RESERVED FOR ORDERS ON
14.12.2020, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
1. The petitioner/Accused No. 5 is before this Court
seeking for:
1.1. Issuance of a writ of certiorari or a writ or
order or direction of appropriate nature in
quashing the order dated 23-9-2020 as per
Annexure - E, which is re-affirmed by order
dated 15-10-2020 as per Annexure H Passed
in Spl C.C. No. 529 of 2019 on the file of the
XXXIII Additional City Civil and Sessions
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Judge and Special Court for NDPS Cases,
Bangalore City, which is arising out of Crime
No.588/2018 on the file of first Respondent
Banaswadi Police, Bangalore, as an abuse of
process of Law.
1.2. Issuance of a writ of certiorari or writ or order
or direction of appropriate nature in quashing
the order dated 14-09-2020 as a part of
Annexure-E in directing the Petitioner to co-
operate for unlocking the mobile phone,
passed in Spl. C.C. No. 529/2019 on the file
of XXXIII Additional City Civil and Sessions
Judge and Special Court for NDPS cases
Bangalore City, which is arising out of Crime
No.588/2018 on the file of the first
respondent police as illegal and abuse of
process of Law.
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FACTS
2. In the Petition, it is contended that:
2.1. The Petitioner is an IT Engineer, having
studied in M/s RV College of Engineering,
Bangalore. He was selected as Software
Engineer, during the process of on-campus
recruitment by Accenture, IT company,
Bangalore, where he worked for one year and
thereafter resigned to do his self avocation of
organising events and parties in 5-star hotels
and other events by obtaining licence and
permission from the police department.
2.2. It is claimed that the nature of work carried
out by the Petitioner is only to book the
participants for the event and the other
arrangements of food and drinks are made by
the hotel management, and he had no control
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of it and even he was not allowed to carry
anything.
2.3. The last event organised by the Petitioner
was in the second week of March 2020 before
COVID- 19 Pandemic lockdown; thereafter,
he has not organised any event or party.
2.4. It is stated that on 3-09-2020, when the
Petitioner was with his parents in Delhi at
about 5:00 P.M, some policemen said to be
from CCB police of Bangalore had visited his
Delhi residence and insisted on his presence
in Bangalore for interrogation by CCB police
and accordingly, he was brought to Bangalore
on 4-09-2020 by flight.
2.5. It is claimed that the Petitioner has been
fixed in an old case in Crime No. 588/ 2018
of Banasawadi police station, in which
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investigation was completed and the charge
sheet was filed on 30-04-2019.
2.6. Petitioner was arrested and produced before
the XXXIII Addl. City Civil and Sessions Judge
and Special Judge for NDPS cases Bangalore
City, on a remand application being filed, he
was remanded to police custody. On the
expiry of the said remand, he was once again
remanded to judicial custody without hearing
him or his counsel, which is contrary to
Section 167 of Cr.P.C., and violative of Article
21 and 22 of the Constitution.
2.7. It is alleged that when he was brought from
Delhi to Bangalore by the second respondent
police, he had a mobile phone bearing SIM
No.8105100009 and the same was seized
under mahazar on 4-09-2020. The Petitioner
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has claimed that he had unlocked his phone
and shown it to the CCB police that it
contains some contact numbers of his friends
and family members. The police had seen the
mobile phone details and thereafter retained
the said mobile in police custody itself.
2.8. It is contended that the prosecution falsely
alleged before the Special Judge on 14-09-
2020 that the Petitioner is not giving his
mobile phone password for unlocking his
mobile when the Court directed the Petitioner
to co-operate for unlocking the mobile phone.
It is further stated that the Petitioner co-
operated with the police in opening his E-mail
accounts.
2.9. On 16-09-2020, the Petitioner was produced
before Court and got remanded to Judicial
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custody because his presence was no more
required for the police investigation.
2.10. On 23-09-2020, the second Respondent, CCB
police, filed an application before the Special
Court for an order of permission to subject
the Petitioner for Polygraph test because he
has not given mobile phone password for
unlocking his mobile phone and also for
getting opened two more E-mail accounts
belonging to him. This application copy was
not served either on the counsel for Petitioner
or on Petitioner, and as soon as it was filed,
an order dated 23-09-2020 was passed to
send the Petitioner for Polygraph test as
prayed in the Application, and it was ordered
to the Investigation officer of CCB Police
Bangalore to take the Petitioner for Polygraph
test with proper escorts by 28-09-2020.
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2.11. It is contended that before passing the order
dated 23-09-2020 directing a Polygraph test,
no opportunity was given to Petitioner or his
counsel to defend the Application filed by CCB
police for Polygraph test and thereby, the
order for Polygraph test was not known to
Petitioner or his counsel.
2.12. It is only on 03-09-2020, the Petitioner's
father was told by his friends that in Media it
is being reported that the Court has
permitted a Polygraph test of the Petitioner.
Petitioner's father immediately informed the
counsel for Petitioner, and thereafter on
verification, it was found to be true and the
order dated 23-09-2020 had been passed
without the Petitioner's knowledge.
2.13. On 3-10-2020, the Petitioner's counsel filed
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an application to recall the order of Polygraph
test dated 23-09-2020 as not tenable in Law
as it amounts to testimonial compulsion hit
by Article 20 clause (3) of the Constitution.
He is not consenting to the Polygraph test;
the order was passed behind the back of the
Petitioner. Hence it was required to recall the
order and to give an opportunity of hearing
regarding the Polygraph test more so when
the Petitioner was not willing to subject
himself to such a test.
2.14. This recall application copy was served upon
Spl.PP on 03-10-2020 and was put up on 05-
10-2020 before the Special Court, which
granted time to file objections, which was
filed on 07-10-2020.
2.15. It is stated that during the course of
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arguments, t he Petitioner's counsel
specifically brought to the notice of the
Special Court that the Petitioner is not
consenting for Polygraph test and the order
for Polygraph test dated 23-09-2020 was
passed without hearing him, it amounts to
testimonial compulsion as held by th e
Hon'b1e Supreme court in the case of Selvi
V/ s State of Karnataka reported in 2010
(7) SCC 263, it interferes in his right to
privacy which is guaranteed as Fundamental
right under Article 21 of the Constitution as
held in th e case of Mr. Ju s t ic e K.S.
Puttaswamy V/ s Union of India
reported in 2017(10) SCC Page.1.
2.16. The Special Court, however, by its order
dated 15-10-2020, rejected the recall
application holding that the Court can order
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for Polygraph test and the order dated 23-09-
2020 cannot be recalled by the same Court.
2.17. It is aggrieved by the said order dated 23-09-
2020, which is re-affirmed by order dated 15-
10-2020, the Petitioner is before this Court
seeking for the aforesaid reliefs.
3. On service of notice Shri. VeeranaTigadi learned
special prosecutor has entered an appearance for
the State and filed his objections; in the said
objections, it is contended as under:
3.1. On 02.11.2018, a case was registered in
Banaswadi Police Station Crime No. 588/2018
against Faith Phuks and two others for the
offences punishable under Section 21(c) of
Narcotic Drugs and Psychotropic Substances
Act, 1985 and Section 14 of Foreigners' Act.
After investigation, keeping open further
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investigation interim final report was
submitted to the Court. In continuation of the
investigation and obtaining permission of the
Court for further investigation, the Petitioner
was apprehended and taken into custody.
From the possession of the Petitioner
incriminating evidence in the form of Mobile
Phone, Laptop and other material objects
seized and the property form prepared.
3.2. For the purpose of the investigation, it is
necessary to open the Mobile Phones, other
electronic gadgets seized from the Petitioner
and the e-mails. The same is protected by
passwords. Investigation Officer called upon
the Petitioner to furnish the Passwords. The
Petitioner refused to disclose the password of
his Mobile Phone and e-Mail addresses. The
Hon'ble Trial Court, by an order dated
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04.09.2020, directed the Petitioner to co-
operate and furnish the password to the
investigating officer.
3.3. The order of the Trial Court was
communicated to the Petitioner requesting
him to furnish the password. In spite of the
direction by the Trial Court the Petitioner did
not furnish the password. On the contrary, he
tried to contend that he has already provided
the password, without having so provided.
3.4. It is on that basis that, Respondent No.2 filed
an Application seeking permission of the Trial
Court to subject the Petitioner to Polygraph
test and the impugned orders passed.
3.5. On the facts and circumstances of the present
case, the dicta laid down in the case of Selvi
Vs. State of Karnataka reported in 2010
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(7) SCC Page 263 is not applicable to the
case on hand as subjecting the Accused to
Polygraph test for the limited purpose of
unlocking the mobile by using the password
and to furnish the password to open e-Mail
does not amount to 'right against self-
incrimination.'
3.6. It is contended that the direction of the Trial
Court to the Petitioner to co-operate with the
Investigating Officer and to unlock the mobile
password is legal. Unlocking the mobile
password does not amount to self-
incrimination, nor does it violate Article 21
and 22 of the Constitution of India; unlocking
mobile phone and/e-mails by furnishing a
password does not amount to self-
incrimination.
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3.7. The contention of the Petitioner that the
mobile phone contains his personal
information which is protected under Right to
Privacy cannot be accepted, the order of the
Trial Court directing the Petitioner to co-
operate in unlocking the mobile phone does
not violate the Right to Privacy and does not
amount to testimonial compulsion.
3.8. The Petitioner has not given the password of
his mobile phone, or e-mail account, did not
co-operate in the investigation; hence, the
direction given by the Trial Court to unlock
the mobile password of e-Mail addresses is
justified and has not violated any rule of Law.
The direction issued by the Trial Court to
reveal the password to unlock his mobile
phone and to open his e-Mail accounts does
not amount to compelling him to be a witness
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against himself, nor does it violate Section
161 (2) of the Code of Criminal Procedure.
3.9. Insisting upon the Petitioner for access to the
data contained in his mobile phone does not
amount to force him to reveal his personal
information nor does it amount to self-
incrimination.
3.10. On these grounds it is contended that the
Petition is misconceived and is liable to be
dismissed.
4. Shri Hasmath Pasha, Learned Senior counsel
appearing for the Petitioner, submitted as under:
4.1. The order dated 23-9-2020 permitting second
respondent police to subject Petitioner for
polygraph test as requested by them is
opposed to Law, and it is in violation of
Article 21 and 22 of the Constitution.
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Polygraph Test
4.2. The said order is in violation of the
judgement of the Hon'ble Supreme Court in
the case of Selvi V/s State of Karnataka
reported in 2010( 7) SCC page 263,
wherein the apex court has clearly laid down
that subjecting the accused to a Polygraph
Test is vi o l a t i ve of 'right against self-
incrimination' which is a fundamental right
guaranteed under article 20 clause (3) of the
Constitution, he relies on t he following
paragraphs of the said judgement:
184. Even though the actual process of
undergoing a polygraph examination or a BEAP
test is not the same as that of making an oral or
written statement, the consequences are similar.
By making inferences from the results of these
tests, the examiner is able to derive knowledge
from the subject's mind which otherwise would
not have become available to the investigators.
These two tests are different from medical
examination and the analysis of bodily
substances such as blood, semen and hair
samples, since the test subject's physiological
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responses are directly correlated to mental
faculties. Through lie detection or gauging a
subject's familiarity with the stimuli, personal
knowledge is conveyed in respect of a relevant
fact. It is also significant that unlike the case of
documents, the investigators cannot possibly
have any prior knowledge of the test subject's
thoughts and memories, either in the actual or
constructive sense. Therefore, even if a highly
strained analogy were to be made between the
results obtained from the impugned tests and
the production of documents, the weight of
precedents leans towards restrictions on the
extraction of "personal knowledge" through such
means.
185. During the administration of a polygraph
test or a BEAP test, the subject makes a mental
effort which is accompanied by certain
physiological responses. The measurement of
these responses then becomes the basis of the
transmission of knowledge to the investigators.
This knowledge may aid an ongoing investigation
or lead to the discovery of fresh evidence which
could then be used to prosecute the test subject.
In any case, the compulsory administration of
the impugned tests impedes the subject's right
to choose between remaining silent and offering
substantive information. The requirement of a
"positive volitional act" becomes irrelevant since
the subject is compelled to convey personal
knowledge irrespective of his/her own volition.
186. Some academics have also argued that the
results obtained from tests such as polygraph
examination are "testimonial" acts that should
come within the prohibition of the right against
self-incrimination. For instance, Michael S. Pardo
(2008) has observed [cited from Michael S.
Pardo, "Self-Incrimination and the Epistemology
of Testimony" [30 Cardozo Law Review 1023-46
(December 2008)] ,Cardozo Law Review at p.
1046]:
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"The results of polygraphs and other lie detection
tests, whether they call for a voluntary response
or not, are testimonial because the tests are just
inductive evidence of the defendant's epistemic
state. They are evidence that purports to tell us
either: (1) that we can or cannot rely on the
assertions made by the defendant and for which
he has represented himself to be an authority, or
(2) what propositions the defendant would
assume authority for and would invite reliance
upon, were he to testify truthfully."
187. Ronald J. Allen and M. Kristin Mace (2004)
have offered a theory that the right against self-
incrimination is meant to protect an individual in
a situation where the State places reliance on
the "substantive results of cognition". The
following definition of "cognition" has been
articulated to explain this position [cited from
Ronald J. Allen and M. Kristin Mace, "The Self-
Incrimination Clause Explained and its Future
Predicted" [94 Journal of Criminal Law and
Criminology 243-293 (2004)], Journal of
Criminal Law and Criminology, Fn. 16 at p. 247]:
"...'cognition' is used herein to refer to these
intellectual processes that allow one to gain and
make use of substantive knowledge and to
compare one's 'inner world' (previous
knowledge) with the 'outside world' (stimuli such
as questions from an interrogator). Excluded are
simple psychological responses to stimuli such as
fear, warmness, and hunger: the mental
processes that produce muscular movements;
and one's will or faculty for choice. ..."
(internal citations omitted)
The abovementioned authors have taken a
hypothetical example where the inferences
drawn from an involuntary polygraph test that
did not require verbal answers, led to the
discovery of incriminating evidence. They have
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argued that if the scope of the Fifth Amendment
extends to protecting the subject in respect of
"substantive results of cognition", then reliance
on polygraph test results would violate the said
right.
188. A similar conclusion has also been made by
the National Human Rights Commission, as is
evident from the following extract in the
Guidelines Relating to Administration of
Polygraph Test (Lie Detector Test) on an Accused
(2000):
"The extent and nature of the 'self-incrimination'
is wide enough to cover the kinds of statements
that were sought to be induced. In M.P. Sharma
[AIR 1954 SC 300 : 1954 Cri LJ 865 : 1954 SCR
1077] the Supreme Court included within the
protection of the self-incrimination rule all
positive volitional acts which furnish evidence.
This by itself would have made all or any
interrogation impossible. The test--as stated in
Kathi Kalu Oghad [AIR 1961 SC 1808 : (1961) 2
Cri LJ 856 : (1962) 3 SCR 10] --retains the
requirement of personal volition and states that
'self-incrimination' must mean conveying
information based upon the personal knowledge
of the person giving information. By either test,
the information sought to be elicited in a lie
detector test is information in the personal
knowledge of the accused."
189. In light of the preceding discussion, we are
of the view that the results obtained from tests
such as polygraph examination and the BEAP
test should also be treated as "personal
testimony", since they are a means for
"imparting personal knowledge about relevant
facts". Hence, our conclusion is that the results
obtained through the involuntary administration
of either of the impugned tests (i.e. the
narcoanalysis technique, polygraph examination
and the BEAP test) come within the scope of
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"testimonial compulsion", thereby attracting the
protective shield of Article 20(3).
II. Whether the involuntary administration
of the impugned techniques is a reasonable
restriction on "personal liberty" as
understood in the context of Article 21 of
the Constitution?
190. The preceding discussion does not
conclusively address the contentions before us.
Article 20(3) protects a person who is "formally
accused" of having committed an offence or even
a suspect or a witness who is questioned during
an investigation in a criminal case. However,
Article 20(3) is not applicable when a person
gives his/her informed consent to undergo any of
the impugned tests. It has also been described
earlier that the "right against self-incrimination"
does not protect persons who may be compelled
to undergo the tests in the course of
administrative proceedings or any other
proceedings which may result in civil liability. It
is also conceivable that a person who is forced to
undergo these tests may not subsequently face
criminal charges. In this context, Article 20(3)
will not apply in situations where the test results
could become the basis of non-penal
consequences for the subject such as custodial
abuse, police surveillance and harassment
among others.
191. In order to account for these possibilities,
we must examine whether the involuntary
administration of any of these tests is compatible
with the constitutional guarantee of "substantive
due process". The standard of "substantive due
process" is of course the threshold for examining
the validity of all categories of governmental
action that tend to infringe upon the idea of
"personal liberty". We will proceed with this
inquiry with regard to the various dimensions of
"personal liberty" as understood in the context of
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Article 21 of the Constitution, which lays down
that:
"21. Protection of life and personal liberty.--No
person shall be deprived of his life or personal
liberty except according to procedure established
by Law."
192. Since administering the impugned tests
entails the physical confinement of the subject, it
is important to consider whether they can be
read into an existing statutory provision. This is
so because any form of restraint on personal
liberty, howsoever slight it may be, must have a
basis in Law. However, we have already
explained how it would not be prudent to read
the Explanation to Section 53 CrPC in an
expansive manner so as to include the impugned
techniques. The second line of inquiry is whether
the involuntary administration of these tests
offends certain rights that have been read into
Article 21 by way of judicial precedents. The
contentions before us have touched on aspects
such as the "right to privacy" and the "right
against cruel, inhuman and degrading
treatment". The third line of inquiry is structured
around the right to fair trial which is an essential
component of "personal liberty".
193. There are several ways in which the
involuntary administration of either of the
impugned tests could be viewed as a restraint on
"personal liberty". The most obvious indicator of
restraint is the use of physical force to ensure
that an unwilling person is confined to the
premises where the tests are to be conducted.
Furthermore, the drug-induced revelations or the
substantive inferences drawn from the
measurement of the subject's physiological
responses can be described as an intrusion into
the subject's mental privacy. It is also quite
conceivable that a person could make an
incriminating statement on being threatened
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with the prospective administration of any of
these techniques. Conversely, a person who has
been forcibly subjected to these techniques could
be confronted with the results in a subsequent
interrogation, thereby eliciting incriminating
statements.
203. This line of precedents shows that the
compelled extraction of blood samples in the
course of a medical examination does not
amount to "conduct that shocks the conscience".
There is also an endorsement of the view that
the use of "force as may be reasonably
necessary" is mandated by Law and hence it
meets the threshold of "procedure established by
law". In this light, we must restate two crucial
considerations that are relevant for the case
before us. Firstly, the restrictions placed on
"personal liberty" in the course of administering
the impugned techniques are not limited to
physical confinement and the extraction of bodily
substances. All the three techniques in question
also involve testimonial responses. Secondly,
most of the abovementioned cases were decided
in accordance with the threshold of "procedure
established by law" for restraining "personal
liberty". However, in this case we must use a
broader standard of reasonableness to evaluate
the validity of the techniques in question. This
wider inquiry calls for deciding whether they are
compatible with the various judicially recognised
dimensions of "personal liberty" such as the right
to privacy, the right against cruel, inhuman or
degrading treatment and the right to fair trial.
226. Therefore, it is our considered opinion that
subjecting a person to the impugned techniques
in an involuntary manner violates the prescribed
boundaries of privacy. Forcible interference with
a person's mental processes is not provided for
under any statute and it most certainly comes
into conflict with the "right against self-
incrimination". However, this determination does
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not account for circumstances where a person
could be subjected to any of the impugned tests
but not exposed to criminal charges and the
possibility of conviction. In such cases, he/she
could still face adverse consequences such as
custodial abuse, surveillance, undue harassment
and social stigma among others. In order to
address such circumstances, it is important to
examine some other dimensions of Article 2.
Conclusion
262. In our considered opinion, the compulsory
administration of the impugned techniques
violates the "right against self-incrimination".
This is because the underlying rationale of the
said right is to ensure the reliability as well as
voluntariness of statements that are admitted as
evidence. This Court has recognised that the
protective scope of Article 20(3) extends to the
investigative stage in criminal cases and when
read with Section 161(2) of the Code of Criminal
Procedure, 1973 it protects accused persons,
suspects as well as witnesses who are examined
during an investigation. The test results cannot
be admitted in evidence if they have been
obtained through the use of compulsion. Article
20(3) protects an individual's choice between
speaking and remaining silent, irrespective of
whether the subsequent testimony proves to be
inculpatory or exculpatory. Article 20(3) aims to
prevent the forcible "conveyance of personal
knowledge that is relevant to the facts in issue".
The results obtained from each of the impugned
tests bear a "testimonial" character and they
cannot be categorised as material evidence."
4.3. The Petitioner is not willing or consenting for
Polygraph Test, had there been an
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opportunity provided to the Petitioner before
passing the impugned order dated 23-9-
2020, he would have mentioned the stand of
'no consent for Polygraph Test'. Such
opportunity not having been provided is a
violation of his right against self-incrimination
and right to privacy which are guaranteed
under Articles 20 clause (3) and 21 of the
Constitution
4.4. Therefore, involuntary Polygraph Test is
prohibited under Law as laid down by the
Hon'ble Supreme Court in the case of Selvi
V/s State of Karnataka - reported in
2010 (7) SCC Page - 263.
4.5. The decision of Selvi V/s State of
Karnataka, has been approved by Hon'ble
Supreme Court in a recent decision of
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Toofan Singh V/s State of Tamilnadu
reported in 2020 SCC online SC 82.
4.6. The principle of Selvi's case has been
reiterated in a case of
Mr.JusticeK.S.Puttaswamy V/s Union of
India reported in 2017 (10) SCC page 1.
Violation of Principles of natural Justice:
4.7. Sections 53 and 311-A of the Code of
Criminal Procedure also do not empower any
Court or Magistrate to give direction to the
accused during the investigation to give the
password to unlock the mobile and thereafter
to use the data available in mobile by the
Investigation Officer in the investigation or
trial of the accused.
4.8. Such an order could never have been passed,
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much less without hearing the Petitioner or
his counsel; the said order is violative of the
principles of natural justice, more so the most
fundamental Principle of 'Audi Alterm
Partem'.
4.9. The said order is no order in the eye of Law
as such an application was filed for recall of
the order, the Court ought to have rectified
its mistake taking into consideration the
Judgment of the Apex Court. However, the
Court did not.
Right to Privacy
4.10. Insisting the Petitioner to unlock his mobile
phone which contains his personal
information is violative of 'Right to Privacy' as
held by the Hon'ble Supreme Court in the
case of Mr.JusticeK.S.Puttaswamy'scase.
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4.11. The order of Trial Court dated 14-9-2020
directing the Petitioner to co-operate by
unlocking the mobile phone is contrary to the
principle of the right to privacy and amounts
to testimonial compulsion, which is
guaranteed as fundamental rights; in this
regard, he relies on the following paragraphs
in Mr.JusticeK.S.Puttaswamy's case.
249. Integrated together, the fundamental
notions of privacy have been depicted in a
seminal article published in 2017 titled "A
Typology of Privacy" [ Bert-Jaap Koops et al., "A
Typology of Privacy", University of Pennsylvania
Journal of International Law (2017), Vol. 38
Issue 2, at p. 566.] in the University of
Pennsylvania Journal of International Law. The
article contains an excellent visual depiction of
privacy, which is presented in the following
format:
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250. The above diagrammatical representation
presents two primary axes: a horizontal axis
consisting of four zones of privacy and a vertical
axis which emphasises two aspects of freedom:
the freedom to be let alone and the freedom for
self-development. The nine primary types of
privacy are, according to the above depiction:
(i) bodily privacy which reflects the privacy of
the physical body. Implicit in this is the negative
freedom of being able to prevent others from
violating one's body or from restraining the
freedom of bodily movement;
(ii) spatial privacy which is reflected in the
privacy of a private space through which access
of others can be restricted to the space;
intimate relations and family life are an apt
illustration of spatial privacy;
(iii) communicational privacy which is reflected
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in enabling an individual to restrict access to
communications or control the use of
information which is communicated to third
parties;
(iv) proprietary privacy which is reflected by the
interest of a person in utilising property as a
means to shield facts, things or information
from others;
(v) intellectual privacy which is reflected as an
individual interest in the privacy of thought and
mind and the development of opinions and
beliefs;
(vi) decisional privacy reflected by an ability to
make intimate decisions primarily consisting
one's sexual or procreative nature and decisions
in respect of intimate relations;
(vii) associational privacy which is reflected in
the ability of the individual to choose who she
wishes to interact with;
(viii) behavioural privacy which recognises the
privacy interests of a person even while
conducting publicly visible activities.
Behavioural privacy postulates that even when
access is granted to others, the individual is
entitled to control the extent of access and
preserve to herself a measure of freedom from
unwanted intrusion; and
(ix) informational privacy which reflects an
interest in preventing information about the self
from being disseminated and controlling the
extent of access to information.
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4.12. There is no specific law, enabling the taking
away his right to privacy, or for a direction to
be given by any court, either to give
password of his mobile or to unlock the same
and further to use the data contained in his
mobile for the purpose of investigation.
4.13. Since the right to privacy is recognised as a
fundamental right under Article 21 of the
Constitution, to take away this fundamental
right, even of an accused, there must be a
law enacted by Parliament and the Law must
meet the test of Article 21 as laid down in
Maneka Gandhi's case i.e., it must be just,
fair and reasonable not illusory.
4.14. Till today, no law is enacted by Parliament
empowering any Court to give direction to
accused to give password and information
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contained in mobile phones. In the absence
of this, the order of the Special Court dated
14-9-2020 is not sustainable in Law.
Self Incrimination
4.15. Even during police interrogation, the accused
is entitled to remain silent, therefore insisting
on revealing passcode or to unlock his mobile
phone and to open his E-mail accounts
amounts to compelling him to be a witness
against himself, which is in violation of
Section 161 (2) of the Code of Criminal
Procedure and also under articles 20 clause
(3) and 21 of the Constitution. In this regard,
he relied on the decision of the Hon'ble
Supreme Court of United States in
Miranda vs. Arizona [384 U.S. 436
(1966) DD 13.06.1966].
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In order fully to apprise a person interrogated of
the extent of his rights under this system then, it
is necessary to warn him not only that he has the
right to consult with an attorney, but also that if
he is indigent a lawyer will be appointed to
represent him. Without this additional warning,
the admonition of the right to consult with counsel
would often be understood as meaning only that
he can consult with a lawyer if he has one or has
the funds to obtain one. The warning of a right to
counsel would be hollow if not couched in terms
that would convey to the indigent--the person
most often subjected to interrogation--the
knowledge that he too has a right to have counsel
present. As with the warnings of the right to
remain silent and of the general right to counsel,
only by effective and express explanation to the
indigent of this right can there be assurance that
he was truly in a position to exercise it.
Once warnings have been given, the subsequent
procedure is clear. If the individual indicates in
any manner, at any time prior to or during
questioning, that he wishes to remain silent, the
interrogation must cease. At this point he has
shown that he intends to exercise his Fifth
Amendment privilege; any statement taken after
the person invokes his privilege cannot be other
than the product of compulsion, subtle or
otherwise. Without the right to cut off
questioning, the setting of in-custody
interrogation operates on the individual to
overcome free choice in producing a statement
after the privilege has been once invoked. If the
individual states that he wants an attorney, the
interrogation must cease until an attorney is
present. At that time, the individual must have an
opportunity to confer with the attorney and to
have him present during any subsequent
questioning. If the individual cannot obtain an
attorney and he indicates that he wants one
before speaking to police, they must respect his
decision to remain silent.
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This does not mean, as some have suggested,
that each police station must have a 'station
house lawyer' present at all times to advise
prisoners. It does mean, however, that if police
propose to interrogate a person they must
make known to him that he is entitled to a
lawyer and that if he cannot afford one, a
lawyer will be provided for him prior to any
interrogation. If authorities conclude that they
will not provide counsel during a reasonable
period of time in which investigation in the
field is carried out, they may refrain from doing
so without violating the person's Fifth
Amendment privilege so long as they do not
question him during that time."
4.16. Insisting the accused for decryption of data
contained in his mobile phone amounts to
forcing him to reveal his personal information
and even if any information regarding the
commission of this offence or any other
offence is contained therein, he can refuse to
do so as contemplated U/s 161 (2) of Cr.P.C.
4.17. In this Writ Petition also the Petitioner has
asserted that he has right to remain silent
during police interrogation also and insisting
him to give the password of his mobile
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phone, is contrary to his right to remain silent
as held by the Apex Court in Nandini
Sathpathy v/s P.L.Danis 1978 (2) SCC
4 24, an d it amounts to testimonial
compulsion hit by Article 20(3) of the
Constitution.
4.18. Even in the famous decision of State of
Bombay V/s Kathi Kalu Oghad reported
in AIR 1961 SC Page 1808, in para 11
which reads thus:
"To be a witness" means imparting of
knowledge in respect of relevant facts by
means of oral statements or statements in
writing, by a person who has personal
knowledge of the facts to be communicated
to a court or to' a person holding an enquiry
or investigation"
4.19. Therefore, insisting the Petitioner - accused
to give password of his mobile phone is
imparting his knowledge by oral testimony or
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in writing which is a Special knowledge in the
mind of accused, cannot be forced to give,
particularly when there is no specific law to
that effect, even if the Law is enacted, how
for it meets the Test of Article 20(3) and 21
of the Constitution?
4.20. The Application filed by the second
respondent police lacks sanction of Law, and
the Court erred in not following the Law and
therefore the impugned orders dated
14-9-2020, 23-9-2020 and 15-10-2020 are
all illegal and abuse of process of Law.
4.21. The Petitioner, in his Application dated
3-10-2020 has stated that he has fully co-
operated for investigation and he has denied
the allegation of not giving the password to
unlock the mobile phone and further denied
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the allegation of non-co-operation in opening
E-mail accounts.
4.22. The principle of a right to remain silent of the
accused during the investigation is well
recognised in the decision of U.S.A Supreme
court in Miranda V/s Arizona, which is
applied worldwide and also by the Hon'ble
Supreme Court in the decision Of Nandini
Sathpaty V/s P.L.Danis a nd another
reported in 1978(2) SCC Page 424.
4.23. Mobile of Petitioner is seized in this case. Any
mobile phone can be decrypted by experts. If
the expert decrypt the mobile phone. Then
the data available in the said mobile phone or
any other electronic documents, if it is of
nature protected under right to privacy, the
same cannot be used without the consent of
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owner, and if no consent is given, it cannot
be taken, without the authority of Law.
4.24. Section 45-A of the Evidence Act, only
describes the relevancy of the opinion of the
examiner of Electronic Evidence as
contemplated under Section 79-A of the
Information Technology Act 2000.
4.25. But these provisions do not specifically
provide for taking away the fundamental
rights guaranteed under Article 20 (3) and
21, particularly the Right to privacy, is
protected under Article 21 of the Constitution.
4.26. Therefore, the impugned orders dated 14-09-
2020 and 23-09-2020, re-affirmed by order
dated 15-10-2020, passed by the Hon'ble
Special Court, take away the Constitutional
Rights of Petitioner; hence those orders are
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liable to be quashed.
5. Per Contra Shri VeeranaTigadi learned Special
Public Prosecutor submitted as under:
5.1. Mobile phones, laptops and other materials
were seized from the Petitioner. All the
electronic gadgets obtained f r om the
Petitioner are password protected.
5.2. On 14.09.2020, the investigating officer filed
an application before the Trial Court seeking
a direction to the Petitioner to co-operate
w ith th e investigation an d divulge the
password of Petitioner's mobile phone. The
Trial Court allowed the Application filed by
the investigation officer and directed the
Petitioner herein to co-operate with the
investigation officer to unlock the mobile
password.
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5.3. The application came to be filed only because
the Petitioner did not divulge the passwords.
If the Petitioner had divulged the password,
there would have been no requirement to file
the Application.
5.4. The order dated 14.09.2020 directing the
Petitioner to furnish the password does not
violate any of his rights under
5.4.1. Article 20(3) of the Constitution of
India and Section 161(2) of the Code
of Criminal Procedure, 1973;
5.4.2. Article 21 of the Constitution of India.
5.5. Article 20(3) of the Constitution of India
provides that no person accused of an offence
shall be compelled to be a witness against
himself. In order to avail the benefit of this
provision, the Petitioner must demonstrate
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that:
5.5.1. the disclosure of the password is in the
nature of personal testimony; and
5.5.2. the disclosure of the password would
lead to self-incrimination.
5.6. Neither of the conditions being satisfied the
order dated 14.09.2020 does not violate the
rights of the Petitioner under Article 20(3) of
the Constitution of India.
5.7. The disclosure of the password is not in the
nature of personal testimony.
5.8. In Kathi Kalu Oghad(paragraph 10, 11, 12,
13 and 16) a 11 judge bench of the Supreme
Court of India held as under:
10. "To be a witness" may be equivalent to
"furnishing evidence" in the sense of making
oral or written statements, but not in the
larger sense of the expression so as to include
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giving of thumb impression or impression of
palm or foot or fingers or specimen writing or
exposing a part of the body by an accused
person for purpose of identification.
"Furnishing evidence" in the latter sense could
not have been within the contemplation of the
Constitution makers for the simple reason that
-- though they may have intended to protect
an accused person from the hazards of self-
incrimination, in the light of the English Law on
the subject -- they could not have intended to
put obstacles in the way of efficient and
effective investigation into crime and of
bringing criminals to justice. The taking of
impressions of parts of the body of an accused
person very often becomes necessary to help
the investigation of a crime. It is as much
necessary to protect an accused person against
being compelled to incriminate himself, as to
arm the agents of Law and the law courts with
legitimate powers to bring offenders to justice.
Furthermore it must be assumed that the
Constitution-makers were aware of the existing
Law, for example, Section 73 of the Evidence
Act or Sections 5 and 6 of the Identification of
Prisoners Act (33 of 1920). Section 5
authorises a Magistrate to direct any person to
allow his measurements or photographs to be
taken, if he is satisfied that it is expedient for
the purposes of any investigation or
proceeding under the Code of Criminal
Procedure to do so: "Measurements" include
finger impressions and foot-print impressions.
If any such person who is directed by a
Magistrate, under Section 5 of the Act, to allow
his measurements or photographs to be taken
resists or refuses to allow the taking of the
measurements or photographs, it has been
declared lawful by Section 6 to use all
necessary means to secure the taking of the
required measurements or photographs.
Similarly, Section 73 of the Evidence Act
authorises the Court to permit the taking of
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finger impression or a specimen handwriting or
signature of a person present in Court, if
necessary for the purpose of comparison.
11. The matter may be looked at from another
point of view. The giving of finger impression
or of specimen signature or of handwriting,
strictly speaking, is not "to be a witness". "To
be a witness" means imparting knowledge in
respect of relevant facts, by means of oral
statements or statements in writing, by a
person who has personal knowledge of the
facts to be communicated to a court or to a
person holding an enquiry or investigation. A
person is said "to be a witness" to a certain
state of facts which has to be determined by a
court or authority authorised to come to a
decision, by testifying to what he has seen, or
something he has heard which is capable of
being heard and is not hit by the rule excluding
hearsay, or giving his opinion, as an expert, in
respect of matters in controversy. Evidence
has been classified by text writers into three
categories, namely, (1) oral testimony; (2)
evidence furnished by documents; and (3)
material evidence. We have already indicated
that we are in agreement with the Full Court
decision in Sharma case [(1954) SCR 1077]
that the prohibition in clause (3) of Article 20
covers not only oral testimony given by a
person accused of an offence but also his
written statements which may have a bearing
on the controversy with reference to the
charge against him. The accused may have
documentary evidence in his possession which
may throw some light on the controversy. If it
is a document which is not his statement
conveying his personal knowledge relating to
the charge against him, he may be called upon
by the Court to produce that document in
accordance with the provisions of Section 139
of the Evidence Act, which, in terms, provides
that a person may be summoned to produce a
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document in his possession or power and that
he does not become a witness by the mere fact
that he has produced it; and therefore, he
cannot be cross-examined. Of course, he can
be cross-examined if he is called as a witness
who has made statements conveying his
personal knowledge by reference to the
contents of the document or if he has given his
statements in Court otherwise than by
reference to the contents of the documents. In
our opinion, therefore, the observations of this
Court in Sharma case [(1954) SCR 1077] that
Section 139 of the Evidence Act has no bearing
on the connotation of the word "witness" is not
entirely well-founded in Law. It is well
established that clause (3) of Article 20 is
directed against self-incrimination by an
accused person. Self-incrimination must mean
conveying information based upon the personal
knowledge of the person giving the information
and cannot include merely the mechanical
process of producing documents in Court which
may throw a light on any of the points in
controversy, but which do not contain any
statement of the accused based on his
personal knowledge. For example, the accused
person may be in possession of a document
which is in his writing or which contains his
signature or his thumb impression. The
production of such a document, with a view to
comparison of the writing or the signature or
the impression, is not the statement of an
accused person, which can be said to be of the
nature of a personal testimony. When an
accused person is called upon by the Court or
any other authority holding an investigation to
give his finger impression or signature or a
specimen of his handwriting, he is not giving
any testimony of the nature of a "personal
testimony". The giving of a "personal
testimony" must depend upon his volition. He
can make any kind of statement or may refuse
to make any statement. But his finger
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impressions or his handwriting, in spite of
efforts at concealing the true nature of it by
dissimulation cannot change their intrinsic
character. Thus, the giving of finger
impressions or of specimen writing or of
signatures by an accused person, though it
may amount to furnishing evidence in the
larger sense, is not included within the
expression "to be a witness".
12. In order that a testimony by an accused
person may be said to have been self-
incriminatory, the compulsion of which comes
within the prohibition of the constitutional
provision, it must be of such a character that
by itself it should have the tendency of
incriminating the accused, if not also of
actually doing so. In other words, it should be
a statement which makes the case against the
accused person at least probable, considered
by itself. A specimen handwriting or signature
or finger impressions by themselves are no
testimony at all, being wholly innocuous
because they are unchangeable except in rare
cases where the ridges of the fingers or the
style of writing have been tampered with. They
are only materials for comparison in order to
lend assurance to the Court that its inference
based an other pieces of evidence is reliable.
They are neither oral nor documentary
evidence but belong to the third category of
material evidence which is outside the limit of
"testimony".
13. Similarly, during the investigation of a
crime by the police, if an accused person were
to point out the place where the corpus delicti
was lying concealed and in pursuance of such
an information being given by an accused
person, discovery is made within the meaning
of Section 27 of the Evidence Act, such
information and the discovery made as a result
of the information may be proved in evidence
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even though it may tend to incriminate the
person giving the information, while in police
custody. Unless it is held that the provisions of
Section 27 of the Evidence Act, insofar as they
make it admissible evidence which has the
tendency to incriminate the giver of the
information, are unconstitutional as coming
within the prohibition of clause (3) of Article
20, such information would amount to
furnishing evidence. This Court in Sharma case
was not concerned with pronouncing upon the
constitutionality of the provisions of Section 27
of the Evidence Act. It could not, therefore, be
said to have laid it down that such evidence
could not be adduced by the prosecution at the
trial of the giver of the information for an
alleged crime. The question whether Section
27 of the Evidence Act was unconstitutional
because it offended Article 14 of the
Constitution was considered by this Court in
the case of State of Uttar Pradesh v. Deomen
Upadhyaya. It was held by this Court that
Section 27 of the Evidence Act did not offend
Article 14 of the Constitution and was,
therefore, intra vires. But the question whether
it was unconstitutional because it contravened
the provisions of clause (3) of Article 20 was
not considered in that case. That question
may, therefore, be treated as an open one.
The question has been raised in one of the
cases before us and has, therefore, to be
decided. The information given by an accused
person to a police officer leading to the
discovery of a fact which may or may not
prove incriminatory has been made admissible
in evidence by that section. If it is not
incriminatory of the person giving the
information, the question does not arise. It can
arise only when it is of an incriminatory
character so far as the giver of the information
is concerned. If the self-incriminatory
information has been given by an accused
person without any threat, that will be
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admissible in evidence and that will not be hit
by the provisions of clause (3) of Article 20 of
the Constitution for the reason that there has
been no compulsion. It must, therefore, be
held that the provisions of Section 27 of the
Evidence Act are not within the prohibition
aforesaid, unless compulsion had been used in
obtaining the information.
16. In view of these considerations, we have
come to the following conclusions:
(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
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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.
5.9. The disclosure of the password by th e
Petitioner in terms of the order dated
14.09.2020 by itself does not incriminate the
accused. Therefore, th e disclosure of
password can be viewed as anything but self-
incrimination within the meaning of Article
20(3) of the Constitution of India.
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5.10. The content of Section 161(2) of the Code of
Criminal Procedure, 1973 is similar to Article
20(3) of the Constitution of India. In fact,
Section 161(2) of the Code of Criminal
Procedure, 1973 merely extends right against
"self-incrimination" to suspects and witnesses
in addition to 'persons formally accused of
commission of an offence'.
RIGHT TO PRIVACY:
5.11. In Justice K. Puttaswamy' case (supra),
the Supreme Court of India held that 'right to
privacy' is 'an intrinsic element of the right to
life and personal liberty under Article 21'
embedded in Part III of the Constitution of
India. However, the 9 judge bench has
unanimously held that the right to privacy is
not absolute and can be curtailed if the
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following requirements are fulfilled:
5.11.1. legality, i.e. existence of a law;
5.11.2. legitimate state interest/ compelling
state interest;
5.11.3. the action must be proportionate, i.e.
there is a rational nexus between the
object and means adopted to achieve
them.
5.12. The order dated 14.09.2020 cumulatively
satisfies all the aforesaid requirements and
therefore does not abridge the rights of the
Petitioner under Article 21 of the Constitution
of India.
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
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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
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Criminal Procedure, 1973 inter alia stipulates
that,
5.15.1. where a person is charged with
committing an offence; and
5.15.2. 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
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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. In this regard, he relied
upon paragraphs 5, 20 and 23 thereof, which
are hereunder reproduced for easy reference:
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5. Two principal questions arose for
determination of the appeal which have been
set out in the order of Ranjana Prakash Desai, J.
dated 7-12-2012 [Ritesh Sinha v. State of U.P.,
(2013) 2 SCC 357 : (2013) 2 SCC (Cri) 748] in
the following terms: (Ritesh Sinha case [Ritesh
Sinha v. State of U.P., (2013) 2 SCC 357 :
(2013) 2 SCC (Cri) 748] , SCC p. 364, para 3)
"3.1. Whether Article 20(3) of the Constitution
of India, which protects a person accused of an
offence from being compelled to be a witness
against himself, extends to protecting such an
accused from being compelled to give his voice
sample during the course of investigation into
an offence?
3.2. Assuming that there is no violation of
Article 20(3) of the Constitution of India,
whether in the absence of any provision in the
Code, can a Magistrate authorise the
investigating agency to record the voice sample
of the person accused of an offence?"
20. In the present case, the view that the Law
on the point should emanate from the
legislature and not from the Court, as expressed
in the Judgment [Ritesh Sinha v. State of U.P.,
(2013) 2 SCC 357 : (2013) 2 SCC (Cri) 748] of
this Court from which the reference has
emanated is founded on two main reasons viz.:
20.1. The compulsion to give voice sample does
in some way involve an invasion of the rights of
the individual and to bring it within the ambit of
the existing Law would require more than
reasonable bending and stretching of the
principles of interpretation.
20.2. If the legislature, even while making
amendments in the Criminal Procedure Code
(Act 25 of 2005), is oblivious and despite
express reminders chooses not to include voice
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sample either in the newly introduced
Explanation to Section 53 or in Sections 53-A
and 311-A CrPC, then it may even be contended
that in the larger scheme of things the
legislature is able to see something which
perhaps the Court is missing.
23. The exercise of jurisdiction by constitutional
courts must be guided by contemporaneous
realities/existing realities on the ground. Judicial
power should not be allowed to be entrapped
within inflexible parameters or guided by rigid
principles. True, the judicial function is not to
legislate but in a situation where the call of
justice and that too of a large number who are
not parties to the lis before the Court, demands
expression of an opinion on a silent aspect of
the statute, such void must be filled up not only
on the principle of ejusdem generis but on the
principle of imminent necessity with a call to the
legislature to act promptly in the matter.
5.19. He relied on the decision of the Apex court in
S u d h ir Chaudhary v. State (NCT of
D e lh i) , ( 2016) 8 SCC 307, more
particularly para 7, 8, 9, 10, 11, 13 thereof
which are hereunder reproduced for easy
reference:
7. The order of the ACMM was questioned before
the Delhi High Court. By a judgment and order
dated 11-2-2015 [Sudhir Chaudhry v. State,
2015 SCC OnLine Del 7457] , a learned Single
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Judge held that the purpose of a voice sample is
to facilitate the process of comparing it with a
recorded conversation. The voice sample is not a
testimony in itself since it only constitutes what
was described as "identification data". A voice
sample, in the view of the High Court is not a
substantive piece of evidence. The High Court
rejected the submission that the direction to
furnish a voice sample was in violation of the
fundamental right under Article 20(3) of the
Constitution since firstly, the appellants had not
been forced or coerced into furnishing such a
sample since it was they who had furnished their
consent; secondly, a voice sample is not
evidence since its purpose is only to compare it
with the questioned text. In the view of the High
Court, once the appellants had furnished their
consent to furnishing their voice samples, it was
not open to them to dictate the course of
investigation. This order is called into question.
8. The learned Senior Counsel appearing on
behalf of the appellants submitted that while it is
true that the appellants have consented to the
drawing of their voice samples (a concession
which was reiterated before this Court in the
course of the submissions) yet the process of
drawing the samples must be fair, so as to be
consistent with the right of the appellants under
Article 21 of the Constitution. The requirement of
a fair investigation, it was urged, is implicit in
Article 21 and the procedure which is adopted for
drawing a voice sample must be fair and
reasonable.
9. The appellants expressly consented to a voice
sample being drawn in their response to the
Application that was filed by the investigating
officer before the Court of Metropolitan
Magistrate. This was reiterated before the High
Court. In the submissions which have been
urged in these proceedings, the learned counsel
has specifically stated that the appellants would
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abide by the consent which they had furnished to
their voice samples being drawn. That being the
position, the only surviving issue for this Court is
to ensure that the underlying process for
drawing the voice samples is fair and reasonable,
having due regard to the mandate of Article 21.
On the one hand, it is not open to the accused to
dictate the course of investigation. Hence, we do
not find substance in the submission that the
text which is to be read by the appellants in the
course of drawing their voice samples should
contain no part of the inculpatory words which
are a part of the disputed conversation. A
commonality of words is necessary to facilitate a
spectrographic examination.
10. By our order dated 17-11-2015 [Sudhir
Chaudhary v. State (NCT of Delhi), 2015 SCC
OnLine SC 1689, wherein it was directed:"Heard.
Mr S. Guru Krishna Kumar, learned Senior
Counsel appearing for the respondent State,
seeks a short adjournment to take instructions
from the experts concerned whether or not a
sample of words, in such number as the experts
may suggest, would suffice for the experts to
give their opinion by scientific voice sampling
methods. He may do so by Tuesday, 1-12-2015.
Post on Tuesday, 15-12-2015."] , this Court
allowed an adjournment to the Respondent to
seek instructions from the expert concerned
whether or not a sample of words in such
number as the expert may suggest would suffice
for the experts to give their opinion by scientific
voice sampling methods. Accordingly, a brief
note has been filed on the record stating that:
"That the experts of the Central Forensic Science
Laboratory (CFSL) have informed that two
separate texts/scripts have been prepared in the
laboratory from each speaker/accused, which are
different from the received transcripts.
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That the text/script prepared by the CFSL
experts cannot be provided to the petitioners in
advance as there is apprehension that the
Petitioner may practice the texts/scripts thereby
adversely affecting the voice sampling
examination. Accordingly it is submitted that the
sample/modal text/script can only be supplied to
the speakers/accused if this Hon'ble Court deems
it appropriate."
11. By an order of this Court dated 1-7-2016
[Sudhir Chaudhary v. State (NCT of Delhi), 2016
SCC OnLine SC 1707, wherein it was
directed:"Arguments heard. Judgment reserved.
In the meantime, the investigating officer shall
file the transcript of the disputed conversation in
a sealed cover. We further direct that the
Director, Central Forensic Science Laboratory
(CFSL) shall file in a sealed cover proposed
passage of a written text, which the petitioners
herein shall be required to read out, for purposes
of giving their voice samples using words but not
the sentences appearing in the disputed
conversation in such number as the
Director/Scientific Officer may consider
necessary for purposes of comparison. Needful
be done within four weeks."] , the investigating
officer was directed to file a transcript of the
disputed conversation in a sealed cover. The
Director CFSL-CBI, was called upon to file in a
sealed cover a proposed passage of a written
text which the appellants shall be required to
read out for the purpose of giving their voice
samples using words, but not the sentences,
appearing in the disputed conversation in such
number as the Director/Scientific Officer may
consider necessary for the purpose of
comparison.
12. We are of the view that the aforesaid
directions which have been issued by this Court
would allay the apprehension of the appellants in
regard to the fairness of the process involved in
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drawing the voice sample. Our directions ensure
that the text which the appellants would be
called upon to read out for the purpose of
drawing their voice samples will not have
sentences from the inculpatory text. Similarly,
permitting the text to contain words drawn from
the disputed conversation would meet the
legitimate concern of the investigating
authorities for making a fair comparison.
13. In pursuance of the directions issued by this
Court the investigating officer has filed in sealed
cover: (i) transcripts of the disputed
conversations; and (ii) a proposed passage of a
written text required to be read out by the
appellants for the purpose of giving their voice
samples. The passage contains words but not the
sentences appearing in the disputed
conversation. Having perused the contents of the
sealed covers, we are satisfied that the
investigating officer has complied with our
directions. We order accordingly.
14. The order [Sudhir Chaudhry v. State, 2015
SCC OnLine Del 7457] passed by the High Court
shall accordingly stand modified and be
substituted by the aforesaid directions.
5.20. In Justice K. Puttaswamy's case (supra)
the Supreme Court of India held that
"prevention and investigation of crime"
are among the legitimate interests of the
state. The disclosure of the password is
sought for investigating crimes under the
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NDPS Act. Therefore, th e order dated
14.09.2020 pursues a legitimate aim.
5.21. The action is proportionate because, it is
merely seeking disclosure of the password in
aid of the investigation. There is a rational
nexus with the objective and means to
achieve the objective.
5.22. In Selvi v. State of Karnataka (2010) 7
SCC 263, paragraph 262, the Supreme
Court of India has held that compulsory
administration of polygraph tests violates
"right against self-incrimination" enshrined in
Article 20(3) of the Constitution of India.The
order dated 23.09.2020 merely ordered the
Petitioner to undergo a polygraph test. There
is no order whatsoever for the test to be
compulsorily conducted on the Petitioner.
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Thus, if such a test is conducted with the
Petitioner's consent, there will be no
infraction of Article 20(3) of the Constitution
of India.
5.23. The investigating officer has acted within the
four corners of Law so as to conduct proper
investigation; hence this Court ought not to
interfere in the matter by relying on P.
Chidambaram v. Directorate of
Enforcement, (2019) 9 SCC 24 more
particularly paragraphs 64, 66, 67 and 68
thereof which are hereunder reproduced for
easy reference:
64. Investigation into crimes is the prerogative
of the police and excepting in rare cases, the
judiciary should keep out all the areas of
investigation. In State of Bihar v. P.P. Sharma
[State of Bihar v. P.P. Sharma, 1992 Supp (1)
SCC 222 : 1992 SCC (Cri) 192] , it was held that
: (SCC p. 258, para 47)
"47. ... The investigating officer is an arm of the
Law and plays a pivotal role in the dispensation
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of criminal justice and maintenance of Law and
order. ... Enough power is therefore given to the
police officer in the area of investigating process
and granting them the court latitude to exercise
its discretionary power to make a successful
investigation...."
66. As held by the Supreme Court in a catena of
judgments that there is a well-defined and
demarcated function in the field of investigation
and its subsequent adjudication. It is not the
function of the Court to monitor the investigation
process so long as the investigation does not
violate any provision of Law. It must be left to
the discretion of the investigating agency to
decide the course of investigation. If the Court is
to interfere in each and every stage of the
investigation and the interrogation of the
accused, it would affect the normal course of
investigation. It must be left to the investigating
agency to proceed in its own manner in
interrogation of the accused, nature of questions
put to him and the manner of interrogation of
the accused.
67. It is one thing to say that if the power of
investigation has been exercised by an
investigating officer mala fide or non-compliance
of the provisions of the Criminal Procedure Code
in the conduct of the investigation, it is open to
the Court to quash the proceedings where there
is a clear case of abuse of power. It is a different
matter that the High Court in exercise of its
inherent power under Section 482 CrPC, can
always issue appropriate direction at the
instance of an aggrieved person if the High Court
is convinced that the power of investigation has
been exercised by the investigating officer mala
fide and not in accordance with the provisions of
the Criminal Procedure Code. However, as
pointed out earlier that power is to be exercised
in rare cases where there is a clear abuse of
power and non-compliance of the provisions
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falling under Chapter XII of the Code of Criminal
Procedure requiring the interference of the High
Court. In the initial stages of investigation where
the Court is considering the question of grant of
regular bail or pre-arrest bail, it is not for the
Court to enter into the demarcated function of
the investigation and collection of
evidence/materials for establishing the offence
and interrogation of the accused and the
witnesses.
Whether direction to produce the transcripts
could be issued
68. The contention of the appellant is that it has
not been placed before the Court as to what
were the questions/aspects on which the
appellant was interrogated on 19-12-2018, 1-1-
2019 and 21-1-2019 and the Enforcement
Directorate has not been able to show as to how
the answers given by the appellant are
"evasive". It was submitted that the
investigating agency Enforcement Directorate
cannot expect the accused to give answers in the
manner they want and the investigating agency
should always keep in their mind the rights of
the accused protected under Article 20(3) of the
Constitution of India. Since the interrogation of
the accused and the questions put to the
accused and the answers given by the accused
are part of the investigation which is purely
within the domain of the investigation officer,
unless satisfied that the police officer has
improperly and illegally exercised his
investigating powers in breach of any statutory
provision, the Court cannot interfere. In the
present case, no direction could be issued to the
Respondent to produce the transcripts of the
questions put to the appellant and answers given
by the appellant.
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5.24. Hence, the order dated 23.09.2020 does not
warrant interference.
5.25. On the above grounds, he sought for
dismissal of the Writ Petition.
6. Heard Shri Hasmat Pasha, learned senior counsel
for the Petitioner, Shri Veerana Tigadi, learned
Special prosecutor for the Respondent state and
perused papers.
7. On the basis of the pleadings filed and the
arguments advanced the points which arise for
determination by this Court are:
7.1. Can a direction be issued to an accused to
furnish the password, passcode or
Biometrics in order to open the smartphone
and/or email account?
7.2. Can a Court issue a suo moto order to the
accused to furnish a password, passcode or
Biometrics?
7.3. In the event of a direction being issued and
the accused not furnishing the password,
passcode or Biometrics, what is the
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recourse available to an Investigating
Officer?
7.4. What is the consideration for the issuance of
a search warrant in order to search a
smartphone or computer system?
7.5. Would the data gathered from a smartphone
and/or email account ipso facto prove the
guilt of the accused?
7.6. Would providing a password, passcode or
Biometrics amount to self-incrimination or
testimonial compulsion?
7.7. Would providing of password, passcode or
Biometrics violate the right to privacy of a
person providing the said password,
passcode or Biometrics?
7.8. What steps could be taken if the accused or
any other person connected with the
investigation were to refuse to furnish a
password, passcode or Biometrics despite
issuance of a search warrant and or a
direction to provide a password, passcode
or Biometrics of that person?
7.9. What are the protection and safeguard that
the Investigating Officer would have to take
in respect of the smartphone and/or
electronic equipment?
7.10. Whether the order dated 14.09.2020
passed by the Trial Court directing the
Petitioner to co-operate with the
investigating agency and provide a
password to open the smartphone and
email account is proper?
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7.11. Whether the order dated 23.09.2020 passed
by the Trial Court directing the Petitioner to
undergo a polygraph test violates the rights
of the Petitioner under Article 20 of the
Constitution of India?
7.12. Whether the order dated 15.10.2020 passed
by the Trial Court dismissing the Recall
Application was in accordance with Law?
7.13. What order?
8. INTRODUCTION:
8.1. Today technology has become all-pervasive,
a telephone which was used in the past for
communication now called a landline has
given way to sophisticated instruments like
smartphones which have computing powers
probably thousand times more than that of
computers of 90's leading to the mobile
phone or a smartphone becoming the central
device for running the affairs of the person.
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8.2. The mobile phone,now called a smartphone,
is truly smart and today is used for all
purposes, one of which is as a phone for
conversing with people.It may also not be
wrong to say that the usage of a smartphone
as a phone is the least used of its features.
8.3. The smartphone is being used today for
various activities, including sending
messages, conversing on social media like
WhatsApp, Facebook, Twitter, Instagram,
Telegram, Signaletc., sending and receiving
e-mails from various accounts, be their
personal or official.Usage of the smartphone
for the purpose of accessing the internet,
browsing world wide web, etc. carrying out
online transactions, online purchases either
by internet browser or through specified and
specific applications, storage of photographs,
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documents, retrieval of the documents stored
in the cloud or on a remote server etc., etc.,
the list could go on and on.
8.4. Essentially today, a smartphone,in many
cases, has replaced the laptop, which had
replaced the office, and the smartphone by
itself is an office for several persons.
8.5. The Law of Evidence and the Criminal
Procedure Code that had been enacted long
ago have also been amended from time to
time to try and cater to the tremendous
technological improvements, apart thereform
the Information Technology Act, 2000 (IT
Act) has been enacted and amended from
time to time to cater to these technological
improvements.
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8.6. The following definitions under IT Act would
be relevant for consideration of the present
matter:
2(ha) "Communication device"
means cell phones, personal digital
assistance or combination of both or any
other device used to communicate, send
or transmit any text, video, audio or
image;]
(i) "computer" means any electronic,
magnetic, optical or other high-speed
data processing device or system which
performs logical, arithmetic, and
memory functions by manipulations of
electronic, magnetic or optical impulses,
and includes all input, output,
processing, storage, computer software
or communication facilities which are
connected or related to the computer in
a computer system or computer
network;
(j) "computer network" means the
inter-connection of one or more
computers or computer systems or
communication device through;
(i) the use of satellite, microwave,
terrestrial line, wire, wireless or
other communication media; and
(ii) terminals or a complex
consisting of two or more
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interconnected computers or
communication device whether or
not the inter-connection is
continuously maintained;
(k) "computer resource" means
computer, computer system, computer
network, data, computer data base or
software;
(l) "computer system" means a device
or collection of devices, including input
and output support devices and
excluding calculators which are not
programmable and capable of being
used in conjunction with external files,
which contain computer programmes,
electronic instructions, input data and
output data, that performs logic,
arithmetic, data storage and retrieval,
communication control and other
functions;
(o) "data" means a representation of
information, knowledge, facts, concepts
or instructions which are being prepared
or have been prepared in a formalised
manner, and is intended to be
processed, is being processed or has
been processed in a computer system or
computer network, and may be in any
form (including computer printouts
magnetic or optical storage media,
punched cards, punched tapes) or stored
internally in the memory of the
computer;
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(r) "electronic form" with reference to
information, means any information
generated, sent, received or stored in
media, magnetic, optical, computer
memory, micro film, computer
generated micro fiche or similar device;
(t) "electronic record" means data,
record or data generated, image or
sound stored, received or sent in an
electronic form or micro film or
computer generated micro fiche;
(v) "information" includes [data,
message, text,] images, sound, voice,
codes, computer programmes, software
and data bases or micro film or
computer generated micro fiche;
8.7. The following definitions in the interpretation
clause of Section 3 of the Indian Evidence
Act would be relevant:
3. Interpretation clause. --In this
Act the following words and
expressions are used in the following
senses, unless a contrary intention
appears from the context:
"Fact". --"Fact" means and includes:-
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(1) any thing, state of things, or
relation of things, capable of being
perceived by the senses;
(2) any mental condition of which any
person is conscious.
"Document":- "Document" means
any matter expressed or described
upon any substance by means of
letters, figures or marks, or by more
than one of those means, intended to
be used, or which may be used, for the
purpose of recording that matter.
"Evidence":- " Evidence" means and
includes--
(1) all statements which the Court
permits or requires to be made before
it by witnesses, in relation to matters
of fact under inquiry, such statements
are called oral evidence;
(2) [all documents including electronic
records produced for the inspection of
the Court], such documents are called
documentary evidence.
8.8. In the past, when any document was marked
in evidence, it was more often than not,
restricted to a document in a physical
format viz., one either written or printed on
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a paper.Today a document could be both
physical and electronic, in any form or
formatsin different combination like binary,
encrypted, etc.
8.9. Juxtaposing the above to the definitions of an
electronic form and electronic record under
the IT Act, it can be seen that the definition
of these two phrases seek to encompass
and cover all kinds of methodology of
storing data, documents as an image,
photographs, documents or
otherwise.Essentially all kind of images,
documents, etc. can be classified as data
inasmuch as the data being information
stored in a particular kind of media.
8.10. Though even earlier documents were
referred to and used for the purpose of
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evidence, essentially even at that point of
time what it referred to was the data in the
said document viz., the printed or written
word in the document, therefore whether
documentary evidence or electronic
evidence essentially what one is dealing
with is data.
8.11. It is this data that is required to be
accessed by an Investigating officer for the
purposes of carrying out an investigation;
this data is required for the purposes of
being referred to while a charge sheet is
being laid, it is the data that would be
considered by a Court of Law during the
course of evidence and/or rendering of the
Judgment.
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8.12. In the past, letters, postcards, Island
letters, telex, fax were used for the purpose
of communication.This communication
essentially resulted in a hard copy being
sent or printed at the recipient's end.This
document, in i ts physical
form,wasconsidered, relied upon as original
document during the investigation process
and later-on produced and marked during
the course of evidence being led in a
proceeding and considered by a Court.
8.13. Smartphones and/or computer equipment
are becoming ubiquitous, hard copies/print
outs/ books, filing cabinets, essentially
anything on paper is becoming obsolete.
8.14. As aforestated, today this physical
document has taken on an electronic
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appearance, and these electronic
documents/data could be stored on the
mobile phone, computer or the like.More
often than not, these smartphones,
computers, servers, etc., are accessed only
by using a password/passcode, including
that by biometrics technology, facial
recognition, iris recognition etc.Thus without
having th e said password, passcode,
biometric, no one can access either a
mobile phone, computer or server.Some
times even safes, filing cabinets, etc., are
also locked using the above methodology.
8.15. It is in this background that the above
matter would have to be considered.
9. ANSWER POINT No.1: Can a direction be
issued to an accused to furnish the password,
passcode or Biometrics in order to open the
smartphone and/or email account?
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9.1. The Investigating Officer, during the course
of an investigation, could always issue any
direction and/or make a request to the
accused or other persons connected with the
matter to furnish information, to provide
material objects or the like. These directions
are routine in any investigation. Thus,
during the course of the investigation, the
Investigating Officer could always request
and/or direct the accused to furnish the
password, passcode or Biometrics, enabling
the opening of the smartphone and/or email
account. It is up to the accused to accede to
the said request and or directions. If th e
accused were to provide such a password,
passcode or Biometrics, the Investigating
Officer could make use of the same and gain
an access to the same.
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10. ANSWER TO POINT NO.3: Can a Court issue a
suomoto order to the accused to furnish a
password, passcode or Biometrics?
10.1.The Court cannot per se issue any directions
to the accused to furnish the password,
passcode or Biometrics and direction to
cooperate would not amount to a direction to
furnish password, passcode or Biometrics.
The gathering of information and/or evidence,
mode and methodology of investigation is in
the exfaciedomain of the Investigating
Officer.
10.2. The court by itself cannot suo moto order for
furnishing of the password, passcode or
Biometrics. The Court is not part of the
investigation. The Court can only act on an
application being filed by either of the
parties.
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11. ANSWER TO POINT NO.4: In the event of a
direction being issued and the accused not
furnishing the password, passcode or
Biometrics, what is the recourse available to
an Investigating Officer?
11.1. In the event of the accused not providing the
password, passcode or Biometrics, the
Investigating Officer can approach the Court
seeking for necessary directions to the
accused to provide the same and/or carry
out a search of the smartphone or any
electronic equipment.
11.2. The Investigating Officer could approach the
concerned Court seeking for issuance of a
search warrant to carry out a search of the
smartphone and/or electronic equipment.
12. ANSWER TO QUESTION NO.5: What is the
consideration for the issuance of a search
warrant in order to search a smartphone or
computer system?
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12.1. The requirement for a search of a
smartphone and/or electronic instrument
could arise under two circumstances.
12.1.1. Emergent circumstances
12.1.2. During the regular ordinary course
of the investigation
12.2. It is in light of these two circumstances that
the nature and methodology of a search
would have to be considered.
12.3. The Cr.P.C. provides a framework for carrying
out a search of any premises or the like.
There is no particular or different framework
provided for the purposes of search of a
smartphone or electronic equipment,
computer, server etc. Thus, it is the
framework under Cr.P.C. and to some extent
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under the Information Technology Act, which
would have to be made applicable to searches
of these kinds.
12.4. Chapter VII of Cr.P.C. provides for search,
seizure, production etc. Section 91 of Cr.P.C.
enables any Court or any officer in charge of
a police station to issue summons or order to
the person in whose possession or power
such a document or thing are believed to be
requiring him to attend and produce it at the
time and place indicated in the said summon
or order.
12.5. Section 92 of Cr.P.C. provides the power to
the District Magistrate, Chief Judicial
Magistrate, Court of Sessions or High Court to
require the postal or telegraph authority for
the purposes of investigation, enquiry or trial
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to order the postal or telegraph authority to
deliver the document, parcel or thing in the
custody of postal or telegraph authority.
Similarly, the Commissioner of Police or
District Superintendent of Police may require
the postal or telegraph authority to cause
search, detain the document or parcel and
produce the same before the Court. I t is
pertinent to mention here that th e
correspondence email etc., would be covered
under the Telegraph Authority.
12.6. Section 93 of the Cr.P.C. provides powers to
the Court to issue a search warrant
12.6.1. On a person not willing to produce a
document or a thing as directed
under Section 91 of Cr.P.C., or
12.6.2. Where the document or thing is not
known to be in possession of any
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person or
12.6.3. Where the Court considers that for
the purpose of any enquiry, trial or
other proceedings, a general search
or inspection would serve th e
purpose.
12.7. In terms of Section 93 (2) of Cr.P.C., the
Court could also restrict the search to a
specific place, a specific time or a specific
purpose.
12.8. Section 94 of Cr.P.C. confers power on
certain Courts to search places suspected to
contain stolen property, objectionable article,
forged documents, counterfeit material,
obscene objects, instruments or materials
used for the production of any item under
Section 94 (2) of Cr.P.C., and to take such
action as may be required in terms of Section
94(1) of Cr.P.C., thereof.
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12.9. In terms of Section 100 of Cr.P.C., in the
event of any place being closed, any person
residing in or being in charge of such place
shall on demand of the officer or other person
executing the warrant and on the production
of the warrant allowing free ingress thereto.
As also afford all reasonable facilities for a
search therein. In the event of any person
suspected to be concealing any article, a
search of such person could also be made
subject to however restrictions that a search
of any woman could be made by a woman.
12.10. During the process of search in terms of
Section 102 of Cr.P.C., any particular item
could be seized by a person conducting a
search on fulfilling certain criteria.
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12.11. In view of the above, the said Chapter VII
provides several powers to the Police or
Magistrates, which could include the power to
search and seize a smartphone, computer,
server or any other electronic item or
equipment.
12.12. A search and seizure of a smartphone can
also be permitted in terms of the above
provisions as contained in the Cr. P.C. As
observed above, in terms of Section 100 of
Cr.P.C., even a closed place can be searched
by the persons searching directing any person
incharge of a place to open the same and
provide all facility. It is in the background of
the above provisions that the aspect of
search of a smartphone or electronic
equipment, including an e-mail account will
have to be considered.
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Search and Seizure in Emergent circumstances
12.13. It may happen that there may arise certain
emergencies or exigencies for a search of a
smartphone or electronic equipment to be
carried out like if the data is going to be
immediately destroyed, there is a danger of
equipment itself being destroyed, th e
possibility of th e equipment n ot being
available, etc.
12.14. In terms of Section 102 of Cr.P.C., if there
are any emergency circumstances, the Police
Officer could seize the equipment; if there is
any suspicion that either the object has been
stolen or which create suspicion of
commission of any offence.
12.15. The second aspect as regards of suspicion of
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any commission of any offence is wide
enough to cover a plethora of situation.
Thus, in an emergent situation, the Police
Officer could seize the electronic equipment.
12.16. In emergent circumstances, it cannot be
expected of the Investigating officer to rush
to a court of Law to obtain a warrant, such a
requirement would amount to negating their
powers and impinging on their functions.
When there is adequate time to obtain a
warrant, the same ought to be obtained,
however, if an urgent search is to be
conducted and it may be difficult to get a
search warrant, certain safeguards will have
to be observed and conditions fulfilled.
12.17. There must exist reasonable grounds for
believing that it is necessary for carrying out
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a search of the Smartphoe or Electronic
Equipment with expediency and that if such a
search is not conducted immediately, the
conduct of the offence may be expedited
and/or the evidence thereof be lost.
12.18. In such a scenario, there must be a recording
in writing made by the Investigating officer,
specifying in writing as far as possible the
reasons for conducting such a search without
a warrant. The objective satisfaction by such
officer of the emergent nature of the search
has to be recorded in writing in sufficient
detail. Unless these conditions are fulfilled, a
search without a warrant would be without
jurisdiction, these conditions are necessary to
safeguard the interest of the person and or
organization searched, more so when a
search so conducted would also impinge on
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the right to privacy of such a person.
12.19. In terms of Section 165 of Cr.P.C., if the
investigating officer during the course of
investigation h as reasonable grounds for
believing that anything required for the
purpose of investigation would be found in a
place within the limits of his police station of
which he is incharge of or attached to, he
may without delay after recording in writing
the grounds for belief and specifying in
writing as far as possible, the thing for which
search is to be made, search any place within
his limits of jurisdiction. However, the copies
of any record made to conduct such a search
would have to be sent to the Magistrate
empowered to take cognizance of an offence
and a record of the same. Though a search
without reasons and without following the
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procedure may be illegal, the illegality of the
search would not make any seizure made
during the search inadmissible as held by the
Hon'ble Apex Court in the case of Dr.Pratap
S in g h vs. Director of Enforcement
Foreign Exchange Regulation and others
reported in (1985) 3 SCC 72. However, the
Courts would have to be cautious while
dealing with the evidence collected in such an
illegal search.
Search and Seizure during the regular ordinary
course of the investigation
12.20. If the search is required to be carried out in a
normal an d regular course of an
investigation, in that situation, the
investigator or investigating agency would
have sufficient time to plan out the manner of
carrying out such a search as there being no
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emergency or immediate requirement of
carrying out such search.
12.21. The investigating officer could issue a notice
under Section 91 of Cr.P.C., calling upon the
accused or any other person to produce any
particular document or equipment as stated
above. If not so produced, a search warrant
could be sought for from the Court of law. Be
that as it may without issuance of a notice
under Section 91 of Cr.P.C., a search warrant
could be issued inasmuch as the issuance of a
notice under Section 91 of Cr. P.C. is not a
pre-condition for issuance of a search warrant
under Section 93 of Cr. P.C. Once a search
warrant is issued and received by the accused
or any other person it would be the obligation
of such person to permit the search and/or to
provide document or thing called upon.
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12.22. While issuing a search warrant, the concerned
Court would have to indicate as to what
smart phone, electronic equipment or email
account is to be searched. The role of the
same in the crime, the nature of search to be
done, place where the search has to be done
as also specifically interdict the persons
carrying out the search from disclosing the
material and/or data procured during the
course of the said search to a third party. So
as to preserve the privacy of the concerned.
12.23. The provisions referred to and mentioned
deals with search and seizure. Electronic
equipment occupies a slightly different
position, in that it is not only the seizure of
the phone and equipment, but once it is
seized, the said equipment is required to be
opened more often than not such equipment
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are locked by password, passcode or
biometrically. Thus, for the purpose of
opening and/or accessing the data on the
said equipment, it would be required for the
accused or person in charge of the said
equipment to provide a password, passcode
or open the same using the biometrics.
12.24. As mentioned above, in terms of Section 100
of Cr.PC., a person in charge of a closed place
is also required to permit such search and, in
fact, facilitate such search.
12.25. Applying the said principle to a smartphone,
electronic equipment or an email account, it
would but be required for the accused or a
person in charge of electronic equipment to
provide the password, passcode or biometrics
to open the Smartphone, computer
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equipment or email account.
12.26. It is these aspects which have to be
considered in the present circumstances.
Section 69(1) of the IT Act empowers the
specified officers to pass orders compelling
the decryption of any information, generated,
transmitted, received or stored in a computer
resource which would also include a
smartphone.
12.27. When the said authority is satisfied that it is
necessary for the purpose of any
investigation into any offence, however, an
officer, before ordering such decryption, is
required to record in writing the reasons for
calling upon for such decryption and inform
the person of the possibility of prosecution if
he does not comply with a request.
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12.28. Search and seizure are important weapons in
the hands of the officers concerned therefore
it is but required that such powers should be
exercised with due circumspection and
discretion, and the same should not result in
harassment of innocent persons. When a
search is made with a warrant, the procedure
required to be followed is stated in the Cr.
P.C, which need to be so followed. Even
when a search is made without a search
warrant, it would be treated that such a
search or consequent seizure is
conducted/made the safeguards enshrined
under the Cr. P.C.
12.29. As observed above, the officers conducting a
search are required to comply with the
procedural requirements of Cr.P.C, some of
them though not exhaustive,are enumerated
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hereunder:
12.29.1. A lady officer is required to be present
if the accused is a lady or if the
equipment is located in a place where
there are ladies present.
12.29.2. The search and seizure should
normally be done after sunrise and
before sunset. However, if it is
conducted after sunset and before
sunrise, the grounds as to why it was
felt necessary to take such action
should be recorded and copy of the
grounds so recorded must be sent
within 72 Hours to the immediate
official superior.
12.29.3. The officers before starting the search
are required to disclose their identity
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by showing their identity cards to the
owner of the premises.
12.29.4. Search should be made in the
presence of two independent and
respected witnesses of the locality.
12.29.5. A Panchnama / Mahazar, should be
prepared on the spot which contains
the proceedings of the search. A list
of all goods, documents recovered
and seized/detained should be
prepared and annexed to the
Panchnama/Mahazar. This document
and the list of things seized needs is
to be signed by the witnesses and the
owner of the premises before whom
the search is conducted and also by
the officers who are carrying out the
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said search.
12.29.6. After examination of the seized goods
or things by the authority, the same
to be sent for any technical/forensic
examination within a period of 72
hours thereof.
12.29.7. A search and seizure report to be
prepared containing the details of the
conduct of the search and outcome,
containing the names of the officers
and other persons including the
panchas and witnesses who
participated in the search.
12.29.8. A copy of the Panchnama / Mahazar
prepared to be furnished to the
person in- charge/owner of the
premises being searched under
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acknowledgement.
13. ANSWER TO QUESTION NO.6:Would the data
gathered from a smartphone and/or email
account ipso facto prove the guilt of the
accused?
13.1. Since, as stated above, a smartphone can
contain humongous data, which could also be
incriminatory insofar as the person owning
the said electronic equipment, including the
smartphone, is concerned and it is in this
background, we have to consider the
providing of a password, passcode or
biometrics and whether making available, this
incriminatory material would amount to
giving of testimony and or a statement in
terms of Section 161 of Cr.P.C.
13.2. On a notice being issued under Section 160 of
Cr.P.C., any witness could be examined by
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the police, the witness could be the accused
himself.
13.3. Such a statement needs to be reduced to in
writing wherein such person is required to
answer all questions relating to such case,
other than the questions, the answer to
which would have the tendency to expose
him to a criminal charge or a penalty or
forfeiture. That being a right to protection of
self-incrimination as enshrined under Article
20 of the Constitution of India.
13.4. Though Mr Tigadi, learned counsel for the
Respondent contended that the disclosure of
password is in the nature of giving specimen
signatures or handwriting and therefore a
direction could be issued under Section 311-A
of the Cr. P.C, I'm of the considered opinion
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that the providing of a password, passcode or
biometrics is more than that, and a direction
cannot be issued in that manner.
13.5. In the event of password, passcode or
Biometrics being provided and th e
Investigating Officer gaining access to the
said smartphone and/or electronic equipment
or email account, the data so gathered would
have to be treated as any other document
and/or object secured during the course of
investigating like in the case of securing a
murder weapon. The same does not by itself
prove that the accused has committed the
murder, similarly, the data gathered by itself
would not prove the guilt of the accused. The
data gathered would have to be proved
during the course of the trial as done in any
other matter.
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14. ANSWER TO POINT NO.7:Would providing a
password, passcode or Biometrics amount to
self-incrimination or testimonial compulsion?
14.1. 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.
14.2. 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
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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 th e 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.
14.3. 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.
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14.4. If the submission of Mr.Hasmath Pasha,
learned Senior counsel would be accepted,
the same would result in a chaotic situation:
14.4.1. No blood samples can be taken;
14.4.2. no sample for DNA analysis could be
taken;
14.4.3. no handwriting samples can be taken;
14.4.4. no other body sample for the purpose of
DNA analysis could be taken
14.4.5. No search of a house or office could be
undertaken.
14.4.6. The data of a laptop or computer or
server cannot be accessed by the
Investigating officer.
14.4.7. offences like cyber crime could never be
investigated.
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14.4.8. Offences l i ke pornography, child
pornography which are more often
than not, on the internet, could not be
investigated.
14.5. 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.
14.6. 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
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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.
14.7. 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.
14.8. By providing of password, passcode or
biometrics, there is no oral statement or a
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written statement being made by the accused
like the Petitioner herein, therefore it can not
be said to be testimonial compulsion.
15. ANSWER TO QUESTION NO.8:Would providing
of password, passcode or Biometrics violate
the right to privacy of a person providing the
said password, passcode or Biometrics?
15.1. This aspect is to be considered in light of the
principles propounded by the Hon'ble Apex
Court in Justice Puttaswamy's case supra.
More so, in view of the fact that the data
which could be available on th e said
electronic equipment being personal in nature
could also be misused by the investigating
agency and/or the investigating agency would
come into possession of personal data which
are held secret by that person which have
nothing to do with the investigation at all
more so since there cannot be a strict
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compartmentalisation of data as personal or
not personal in the said equipment belonging
to a person or in the e-mail account.
15.2. Once the investigating agency has an access
to a electronic equipment more particularly
smart phones and/or laptops, th e
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.
15.3. 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
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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.
15.4. 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.
15.5. 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
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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.
16. ANSWER TO POINT NO.9:What steps could be
taken if the accused or any other person
connected with the investigation were to
refuse to furnish a password, passcode or
Biometrics despite issuance of a search
warrant and or a direction to provide a
password, passcode or Biometrics of that
person?
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16.1. Though not argued or contended this Court
would also have to take into consideration
the possibility of the accused not co-
operating inspite of above directions having
been issued and/or providing apassword,
passcode which is incorrect.
16.2. In the event of the accused not co-operating
and not providing necessary password,
passcode adverse inference could be drawn
subject to the prosecution pointing out the
nature of such adverse inference which could
be drawn.
16.3. The second situation is even more dangerous
inasmuch as the accused may provide a
wrong password or passcode and or provide
biometrics of a wrong person, and sometimes
by way of the usage of such wrong password,
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passcode or biometrics for more times than
one, the device could either get locked and/or
the data on the said device and the e-mail
account could be wiped out automatically
because a wrong password, passcode or
biometrics has been used multiple times. The
Investigating agency therefore has to be
aware of and careful of this possibility.
16.4. The accused in such a situation is therefore
required to be given only one chance to
provide the proper password, passcode or
biometrics to open the smartphone and e-
mail account.
16.5. In both the above situations, the
Investigating Agency would also be at liberty
to engage such specialised agency as may be
required in order crack th e password,
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passcode or biometrics so as to have access
to the smartphone and or the e-mail id. The
accused cannot thereafter contest th e
methodology used by the Investigating
Agency to access the information on the
smartphone or e-mail account since the
accused having been given an opportunity to
co-operate and provide th e password,
passcode, or biometrics, has refused to co-
operate and do so,
16.6. The rules of electronic device would apply to
any data if sought to be made use of by the
Investigating agency in a Court of Law. The
Investigating agency would be at liberty to
clone the smartphone and or hard disk of the
smartphone, as also any data available on
any cloud service to which the smartphone is
connected to and make use of the same
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during the course of investigation and/or
trial.
16.7. Similarly the Investigating agency would be
at liberty to block the access to the e-mail
accounts once opened by changing th e
password so that no one else apart from the
designated officers would have access to the
said smartphone, computer equipment or e-
mail accounts. The data available on the said
e-mail account could be downloaded and
preserved, as also made use of by the
Investigating agency for the investigation.
16.8. Thus the procedure that would have to be
followed would be as under:
16.9. It would be required for the prosecution to
approach the Court to seek a search warrant
to search the smartphone and or e-mail
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account. Once a search warrant is issued, it is
upto the Petitioner- accused to provide the
password, passcode, biometrics etc.,
16.10. The investigating agency could also serve a
notice on the accused indicating that in the
event of the accused not furnishing the said
password, passcode, biometrics etc., an
adverse inference would be drawn against the
accused as regards the aspects notified in the
said notice. The accused can then,in order to
avoid the adverse inference from being
drawn, furnish the password, passcode or
biometrics to the Investigating authorities.
16.11. In the event of the accused or any other
person not providing the password, passcode
or biometrics, on an application made by the
prosecution, the court could direct the service
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provider viz., manufacturer of the
smartphone and/or e-mail service provider,
to open or unlock the smartphone and/or
email account to enable access to the said
smartphone and/or email account.
16.12. In the event of the manufacturer and the
service provider not facilitating the opening of
the smartphone, email account or computer
equipment, then the Court on an application
being filed in that regard permit the
Investigating Officer to hack into the
smartphone and/or email account.
16.13. The investigating agency would be
empowered to engage the services of such
persons as may be required to hack into the
smartphone and or e-mail account and make
use of the data available therein, which would
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be akin to breaking open a lock or door of the
premises when the accused were to refuse to
co-operate with the Investigating officer and
open the door of locked premises.
16.14. In the event of the investigating agency is
unsuccessful in hacking into the smartphone
and or the e-mail account and during the
course of such a procedure, if the data on the
smartphone and or the e-mail account being
destroyed then, the Investigating
agency/prosecution would be free to rely
upon the notice by which the accused was
warned of adverse inference being drawn.
17. ANSWER TO POINT NO.10:What are the
protection and safeguard that the
Investigating Officer would have to take in
respect of the smartphone and/or electronic
equipment?
17.1. It is required for the Investigating Officer or
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the search team to carry out the search in a
proper and scientific manner, more so since
what has to be searched in the electronic
equipment, smartphone or email account.
17.2. Apparently, there are no rules formulated by
the police department regarding the manner
of carrying out a search and/or for
preservations of the evidence gathered
during the said search in respect of
smartphone, electronic equipment or email
account.
17.3. It would be in the interest of all the
stakeholders that detailed guidelines are
prepared by the police department in relation
to the same.
17.4. Pending such formulation, it would be
required that the following minimum
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guidelines are implemented:
17.5. In the case of a personal computer or a
laptop:
17.5.1. When carrying out a search of the
premises, as regards any electronic
equipment, Smartphone or e-mail
account, the search team to be
accompanied by a qualified Forensic
Examiner.
17.5.2. When carrying out a search of the
premises, the investigating officer
should not use the computer or attempt
to search a computer for evidence. The
usage of the computer and/or search
should be conducted by a properly
authorized and qualified person, like a
properly qualified forensic examiner.
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17.5.3. At the time of search, the place where
the computer is stored or kept is to be
photographed in such a manner that all
the connections of wires including
power, network, etc., are captured in
such photograph/s.
17.5.4. The front and back of the computer
and/or the laptop while connected to all
the peripherals to be taken.
17.5.5. A diagram should be prepared showing
the manner in which the computer
and/or the laptop is connected.
17.5.6. If the computer or laptop is in the
power-off mode, the same should not
be powered on.
17.5.7. If the computer is powered on and the
screen is blank, the mouse could be
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moved and as and when the image
appears on the screen, the photograph
of the screen to be taken.
17.5.8. If the computer is powered on, the
investigating officer should not power
off the computer. As far as possible,
the investigating officer to secure the
services of a computer forensic
examiner to download the data
available in the volatile memory i.e.,
RAM since the said data would be lost
on the powering down of the computer
or laptop.
17.5.9. If the computer is switched on and
connected to a network, the
investigating officer to secure the
services of a forensic examiner to
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capture the volatile net work data like
IP address, actual net work connections,
net work logs, etc.,
17.5.10. The MAC address also to be identified
and secured.
17.5.11. In the unlikely event of the Forensic
examiner not being available, then
unplug the computer, pack the
computer and the wires in separate
faraday covers after labeling them.
17.5.12. In case of a laptop if the removal of the
power cord does not shut down the
laptop to locate and remove the battery.
17.5.13. If the laptop battery cannot be
removed, then shut down the laptop
and pack it in a faraday bag so as to
block any communication to the said
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laptop since most of the laptops,
nowadays have wireless communication
enabled even when the laptop is in the
stand by mode.
17.6. Seizure of networked devices: Apart from the
above steps taken as regards seizure of the
computer, laptop, etc., if the said equipment
is connected to a network:
17.6.1. To ascertain as to whether the said
equipment is connected to any remote
storage devices or shared network
drives, if so to seize the remote storage
devices as also the shared network
devices.
17.6.2. To seize the wireless access points,
routers, modems, and any equipment
connected to such access points,
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routers, modems which may some
times be hidden.
17.6.3. To ascertain if any unsecured wireless
network can be accessed from the
location. If so identify the same and
secure the unsecured wireless devices
since the accused might have used the
said unsecured wireless devices.
17.6.4. To ascertain who is maintaining the
network and to identify who is running
the network - get all the details relating
to the operations of the network and
role of the equipment to be seized from
such network manager.
17.6.5. To obtain from the network manager,
network logs of the machine to be
searched and/or seized so as to
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ascertain the access made by the said
machine of the net work.
17.7. Mobile devices:Mobile devices would mean an
include smartphone, mobile phone, tablets
GPS units, etc., during the course of seizure
of any of the mobile devices, apart from the
steps taken in respect of a computer and/or
laptop, the following additional steps to be
taken:
17.7.1. Prevent the device from communicating
to network and/or receiving any
wireless communication either through
wifi or mobile data by packing the same
in a faraday bag.
17.7.2. Keep the device charged throughout,
since if the battery drains out, the data
available in the volatile memory could
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be lost.
17.7.3. Look for slim-slots remove the sim card
so as to prevent any access to the
mobile network, pack the sim card
separately in a faraday bag.
17.7.4. If the device is in power-off mode, the
battery could also be removed and kept
separately.
17.7.5. If the device is powered on, then put it
in an aeroplane mode in android device
or airplane mode in a IOS device.
17.8. In all the cases above, the seized equipment
should be kept as far as possible in a dust-
free environment and temperature controlled.
17.9. While conducting the search, the
investigating officer to seize any electronic
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storage devices like CD, DVD, Blu-Ray, pen
drive, external hard drive, USB thumb drives,
solid-state drives etc., located on the
premises, label and pack them separately in a
faraday bag.
17.10. The computers, storage media, laptop, etc.,
to be kept away from magnets, radio
transmitters, police radios etc., since they
could have an adverse impact on the data in
the said devices.
17.11. To carry out a search of the premises to
obtain instructions manuals, documentation,
etc., as also to ascertain if a password is
written down somewhere since many a time
person owning equipment would have written
the password in a bok, writing pad or the like
at the said location.
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17.12. The entire process and procedure followed to
be documented in writing from the time of
entry of the investigation/search team into
the premises until they exit.
18. ANSWER TO POINT NO;11:Whether the order
dated 14.09.2020 passed by the Trial Court
directing the Petitioner to co-operate with the
investigating agency ad provide a password
to open the smartphone and email account is
proper?
18.1. The trial court in the present case has
directed the Petitioner accused to co-operate
with the Investigating agency and provide the
password, passcode for the smartphone, as
also for the e-mail account of the Petitioner, I
am of th e considered opinion that the
examination of a smartphone or an e-mail
account is in the nature of a search being
carried out, such a search cannot be so
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carried out without a search warrant. The
trial Court by merely directing the Petitioner
to co-operate with the Investigating agency,
the Petitioner cannot be forced or constrained
to provide such a password, passcode,
biometrics etc., for the purpose of opening of
the smartphone and or an e-mail account,
much less without recording reasons for the
same. Th e process and procedure as
discussed and detailed above would have to
be followed.
18.2. For all the aforesaid reasons the order dated
14.09.2020 passed by the trial directing the
Petitioner to co-operate with the investigating
agency ad provide a password to open the
smartphone and email account is not proper
or legal and is therefore set aside. Liberty is,
however, reserved to the prosecution to file
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necessary applications, which would be
considered by the trial court in accordance
with applicable law and discussion above
19. ANSWER TO POINT NO;12: Whether the order
dated 23.09.2020 passed by the Trial Court
directing the Petitioner to undergo a
polygraph test violates the rights of the
Petitioner under Article 20 of the Constitution
of India?
19.1.The Trial Court, by its order dated
29.03.2020, had directed the administration
of polygraph test on the Petitioner. This order
was passed on an oral request without there
being an application filed by the prosecution
and no opportunity having been provided to
either the Petitioner or his counsel. The
Petitioner was also not heard on the same nor
was his consent obtained by the trial Court
before the order dated 23.09.2020 was
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passed.
19.2.Though it is contended by Sri. Veerana Tigadi
learned Special prosecutor that the order
dated 23.09.2020 only directed
administration of a polygraph test and that no
polygraph test would have been administered
without the consent of the Petitioner; in my
considered opinion, no such order could have
been passed without having obtained the
consent of an accused like the Petitioner.
19.3.In my considered opinion, there is no
question of post-decisional hearing or
consent, any consent of the accused would
have to be obtained by the Court ordering the
administration of polygraph test before
directing so. The Apex Court in Selvi's case
(supra), the relevant paragraphs which has
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been extracted hereinabovehas categorically
held that there cannot be an administration of
a compulsive polygraph test which would also
mean that no order for administration of
polygraph test made without obtaining the
consent of the person on whom it is
administered.
19.4. Merely because an accused is silent, neither
accepts or rejects the administration of
polygraph test would also not amount to
consent being provided by the accused. Such
a consent has to be categorical without any
doubt and be made after being informed and
made aware of the implication of the
polygraph test and effect thereof.
19.5.The Judgment of the Apex Court in Selvi's
case is categorical and clear about the
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aspects of the administration of polygraph
test. The details of Law as laid down by the
Apex Court in Selvi's case (supra) would
have to be followed by investigating agency,
as also by the trial Court.
19.6.In the present case, the Petitioner having not
consented to administration of a polygraph
test and in fact having challenged the same,
refusing the administration thereof, had
categorically indicated that he does not wish
to be subjected to a polygraph test, I am of
the considered opinion that no polygraph test
could be administered on the Petitioner.
19.7.Hence, I answer the above question by
holding that no polygraph test can be
administered without obtaining the
consent of the person to whom the
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polygraph test is to be administered.
19.8.An application if any for such polygraph
test has to be served on the said person
on whom the polygraph test is to be
administered, as also on the lawyer of
the said person if so appearing. The
effect and impact of the polygraph test
and any answers given during the
conduct of the polygraph test has to be
clearly made known to the said person.
The consent in writing to be obtained
from such person before directing the
administration of the polygraph test.
Mere silence of the said person would
not amount to consent on behalf of such
person. If a person were to refuse the
administration of polygraph test, no such
polygraph test could be administered
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and even if administered, the result of
the said test would be void and cannot
be considered by a Court of Law.
20. ANSWER TO POINT NO.:13: Whether the
order dated 15.10.2020 passed by the Trial
Court dismissing the Recall Application was in
accordance with Law?
20.1. An application was filed by the accused to
recall the order dated 23.09.2020 passed by
the trial Court directing the petitioner to
undergo a polygraph test.
20.2. On account of the answer given to Point
No.12 above, I am of the considered opinion
that the trial Court ought to have taken into
consideration the decision of the Hon'ble
Apex Court in Selvi's case (supra) and once
the trial Court had been informed and/or it
was brought to the notice of the trial Court
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that on account of the decision of the Hon'ble
Apex Court a polygraph test could not be
conducted without a consent of the person
who has to be subjected to such a test, the
trial Court ought to have recalled its order
rather than dismissing the same.
21. ANSWER TO POINT NO.13: What order?
21.1. In view of the answers to the above question,
the petition is partly allowed.
21.2. The order dated 14.09.2020 passed by the
trial Court, directing the petitioner to furnish
the password, passcode or Biometrics of his
mobile phone and e-mail account is set-aside.
21.3. The order dated 23.09.2020 passed by the
trial Court, directing the petitioner to undergo
a polygraph test is set-aside.
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21.4. The order dated 15.10.2020 passed on the
recalling application does not survive for
consideration.
21.5. Parties to bear their respective costs.
Sd/-
JUDGE
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