The article is written by Nikhil Thakur, a student of Manav Rachna University. The author, through this article, has attempted to explain briefly the limitations of an investigation officer. Further, the author has inculcated the case of Virendra Khanna v. the State of Karnataka (2021).
Table of Contents
Introduction
A single-judge bench of the Karnataka High Court in the case of Virendra Khanna v. The State of Karnataka (2021) observed that the investigating officer shall have no right to reveal or impart the personal information that was seized from the accused’s mobile or any other electronic gadget without due permission of the hon’ble court. The Karnataka High Court further stated that any investigating officer who without permission imparts or reveals the personal information of the accused shall be liable for trespass or to be set aside from his/her duty.
Any personal data or information that is received while seizing them shall not be made a subject matter for the violation of the right to privacy as enshrined under the ambit of Article 21 of the Indian Constitution and the landmark Supreme Court judgment of Justice K.S Puttaswamy (Retd.) v. The Union of India, 2018. The Karnataka High Court dismissed the order passed by the trial court that the accused shall provide personal information to the investigating officer. For seeking personal information the investigating officer shall have a search warrant in hand.
Virendra Khanna v. The State of Karnataka, 2021
In the said case, a single judge bench composed of Justice Suraj Govindaraj passed an order on 12th March 2021 concerning the limitations of the investigating officer during the investigation.
Facts of the case
- In the year 2020, the Bangalore police arrested the petitioner (Virendra Khanna) from the NCT of Delhi concerning the case which was registered against him in the year 2018.
- While arresting, the investigating officer seized the smartphone and asked the petitioner to reveal his smartphone and email account password. It was alleged that the petitioner rejected the request of the investigating officer, hence, the officer moved to a Special NDPS Court seeking permission for conducting a polygraph test as the petitioner was not revealing the password.
- The petitioner alleges that he had already revealed the password of his smartphone and email account. Still, the Special NDPS Court accepted the plea of the investigating officer and allowed for the polygraph test and no contentions were considered concerning the petitioner.
- Subsequently, the petitioner approached the Hon’ble Special NDPS Court to dismiss the order passed because the test was imposed upon him, it was not voluntarily done or consented and hence a clear violation of Article 20(3) of the Indian Constitution. Interestingly, the Special NDPS Court refused to dismiss its order thus, the petitioner approached the Hon’ble Karnataka High Court.
Issues raised
There were chiefly two major issues that were observed by the Karnataka High Court:
- Whether the order passed by the Special NDPS Court against the petitioner was violative of the right to privacy or not.
- Whether the investigating officer was allowed to share the personal information that was seized during the investigation with any third party without the permission of the court.
Contentions of the parties
The petitioner was represented by a senior advocate namely Hashmath Pasha, who contended that pressurising the petitioner to unlock his smartphone along with the email account is a gross violation of Article 21 of the Indian Constitution or the right to privacy as held in Justice K.S Puttaswamy (Retd.) v. The Union of India, 2018.
The advocate on behalf of the petitioner further contended that there is no specific law that allows for taking the right to privacy or enabling any court to direct or order someone to reveal his/her password and using such revealed information for the investigation.
Further, it was contended that the right to privacy is a fundamental right within the scope of Article 21 of the Indian Constitution. If the right to privacy is to be taken away, the parliament shall enact legislation for the same and it shall further comply with the guidelines enumerated in the Maneka Gandhi v. Union of India (1978).
Moreover, the Special NDPS Court allowed no opportunity for the petitioner to defend the application filed by the respondent concerning the polygraph test, and hence the petitioner had no knowledge of the same.
The advocate on behalf of the prosecution contended that the application for seeking a polygraph test against the petitioner was submitted because the petitioner refused to reveal the password when asked. Further, it was stated that if the petitioner would have revealed or disclosed the password, there would be no need of filing such an application.
The prosecution further contended that there was no violation of the right to privacy or Article 21, Article 20(3) of the Indian Constitution and Section 161(2) of the Code of Criminal Procedure, 1973.
Order passed
Accessing the accused’s personal information
The Hon’ble High Court of Karnataka enumerated few steps that shall be taken by the investigating officer in case the accused refuses to reveal his/her password during the investigation:
- The Court directed that in such a situation, the prosecution shall approach the court for seeking a search warrant to search on the accused’s smartphone and any other electronic device. The accused is under obligation to reveal his/her password after receiving a search warrant.
- The investigating officer through their investigating agency may furnish notice in the name of the accused to reveal their personal information. Further, the Court said that the accused may be subjected to adverse interference if he does not reveal the password after the said notice.
- The Court further directed that the prosecution may also seek the permission of the court to direct the service providers to reveal the personal data or information related to the accused.
- If in case, the service provider refuses to reveal or disclose the personal information of the accused, the prosecution may approach the court to permit the investigating officer to hack the smartphone or other electronic device of the accused. The agency may also employ a hacker for that purpose.
- In case, the hacking into a smartphone or email account has failed and during such procedure, the essential data/information was destroyed, the investigating officer may resort to the notice of adverse inference.
- The Hon’ble Karnataka High Court dismissed the order passed by the lower court that requires the accused to reveal his password. The Court further added that the prosecution or the investigating officer shall seek a search warrant to get access to the accused smartphone or email account.
The issue of privacy
The Court observed that in the time of the digital revolution, technology has become pervasive as the telephone is now called landline and this landline has given way to sophisticated devices like smartphones and has become an integral part of the human affair.
Relying on the above-mentioned statement, the Court was of the opinion that it cannot issue any direction to the accused to furnish his password or any personal information and direct him to cooperate during the investigation. Further, the court stated that the collection of essential data is in the ex-facie ambit of the officer.
The Court observed that once the investigating officer has access to the electronic devices of the accused, the officer has unhindered access to the entire data or personal information that may be saved in a smartphone, email account, cloud service, etc.
Moreover, the Court stated that the rules applicable to physical documents that can be classified as private or confidential cannot be applied to the information that is stored in a smartphone. Justifying this reason, the court said that once the officer has access to the smartphone he has complete access to the information stored in it.
The Court observed that though such data or information gathered from the accused’s smartphone may be incriminatory but shall not amount to a violation of the right to privacy if the information was used during the course of the investigation by the investigating officer. Using the personal data during the investigation would come under the ambit of exception as mentioned in the case of Justice K.S Puttaswamy (Retd.) v. The Union of India, 2018.
Testimonial compulsion
The Karnataka High Court observed that furnishing the password or any other personal information shall not amount to testimonial compulsion. The High Court relied on a Supreme Court case of State of Bombay v. Kathi Kalu Oghad (1961) and held that mere furnishing of the information stored in smartphone and email account shall not be included within the ambit of “to be a witness”. The Court gave the reasoning that the mere presence of a document in the smartphone or email account shall not amount to the guilt or innocence of the accused, and any such document recovered shall be proved in accordance with the Indian Evidence Act, 1872.
Analysis of the case
The Karnataka High Court in the case of Virendra Khanna v. The State of Karnataka (2021), made an error by stating that disclosing or revealing the password or personal information to the investigating officer during the investigation would not amount to testimonial compulsion.
According to a landmark Supreme Court judgment of Selvi v. The State of Karnataka (2010), it was held that Article 20(3) comes into action when the statement that was furnished by the accused would lead to self-incrimination. On this basis, any compulsion to disclose personal information including the password of the smartphone and email account shall amount to a gross violation of Article 20(3).
Further, a password in any form is also based on the individual’s personal knowledge and is not mere data stored in a device, and hence furnishing the same to investigating officers would amount to testimonial compulsion.
The disclosing of password and biometric for unlocking the device shall amount to testimonial compulsion because the said compulsion to reveal would permit the investigating officer to get access to the personal information of the accused that may be self-incriminatory and it goes against the principles as laid down in the Supreme Court case of Selvi v. The State of Karnataka (2010).
Thus, the Karnataka High Court has mistakenly equated the term password with that to a physical document without considering the fact that passwords are also based on personal knowledge and maybe self-incriminatory. Hence, pressurising or forcing anyone to disclose his/her personal information is more or less compelling the accused to be a witness in his own case.
Conclusion
The crux of the case is that the investigating officer is not empowered to share or reveal the personal data or information of the accused to a third party without due permission of the court. Further, the Hon’ble Karnataka High Court dismissed the order passed by the lower court which permitted the infusion of polygraph test upon the accused because he was not disclosing the password. Interestingly, the High Court issued a few guidelines concerning the steps that can be adopted by the investigating officer to take the password of the accused’s smartphone and other electronic devices. Moreover, the Court stated that revealing personal data, information that includes the password of a smartphone or email account shall not amount to testimonial compulsion.
The Karnataka High Court order that the revealing of the personal information to the investigating officers during the investigation shall not amount to a violation of the right to privacy goes against the principles as laid down in the case of Justice K.S Puttaswamy (Retd.) v. The Union of India, 2018. Hence, the Karnataka High Court in the Virendra Khanna v. The State of Karnataka (2021) has clearly restricted the constitutional right available to all the citizens.
References
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