Hearing a case related to corruption, a Delhi court said that the accused cannot be compelled to give such information and in this regard he is liable to comply with Article 20(3) of the Constitution of India as well as the Code of Criminal Procedure. is protected by section 161(2) of the
New Delhi: A Delhi court recently held in a significant judgment that an accused cannot be compelled by the Central Bureau of Investigation (CBI) to provide his password and obtaining this information without his consent is against self-crime. right would be infringed.
According to the report, Special Judge Naresh Kumar Laka made the remarks while dismissing the CBI’s application seeking password and user ID of computers seized from the custody of the accused in a corruption case.
In the order pronounced on 29 October 2022, the judge said, “…the accused cannot be compelled to give such information and in this regard he is bound by Article 20(3) of the Constitution of India (of the Code of Criminal Procedure). Protected by section 161(2).’
Article 20(3) of the Constitution provides that ‘no person accused of any offense shall be compelled to be a witness against himself’, whereas Section 161(2) of the CrPC states that no person shall ‘Whose nature would be to expose him to criminal charge or punishment or forfeiture’.
The court clarified that the Investigating Officer has the right to access the data of the computer system and its software with the help of any expert agency or person, even in the event of risk of losing the data of the accused.
Importantly, the court drew a line between passwords and biometric information such as fingerprints, facial or eye recognition. The judge said, “… In view of the recently enacted Criminal Procedure (Identity) Act, 2022 … this Court is of the view that a different approach needs to be adopted for the password and biometrics of the accused.”
The case pertains to the arrests made by the CBI in September 2020, when a former deputy commissioner of the Central Board of Indirect Taxes (CBIT) and two others were accused of accepting bribes. He had allegedly hatched a conspiracy to lure government servants to clear a consignment of imported toys that were intercepted by the authorities.
The CBI prosecutor said that the accused has been released on bail on the condition that he will cooperate in the investigation and the information sought will lead to a fair investigation.
In the 48-page order, the CBI court said the Supreme Court has prescribed a test to identify whether a particular fact, information, testimony or evidence falls under the category of ‘statement of facts’ or ‘material material or evidence’. .
The first category is protected by Article 20(3) of the Constitution and hence the accused is not obliged to provide this information, but the second category is not protected and can be obtained by coercing an accused person.
The copy of the order provided by LiveLaw said, “In the present application, the CBI/Investigation Officer is asking for the password of his computer from the accused, so that his data can be accessed, for the purpose of comparison or identification. is not for. Therefore, the said request of the Inquiry Officer comes in the first category.
Quoting the Supreme Court, the order said that because narcoanalysis of lie detection tests involves personal information of the accused and these procedures cannot be carried out without the consent of the accused, the same logic applies to passwords.
Additionally, the court held that an accused cannot be compelled to create a security pattern that unlocks a phone or any other electronic device as it requires the use of mind and personal knowledge and it Similar to password.
The court also said that in India, evidence obtained by illegal means or in violation of the process of law can still be used in certain circumstances. Therefore, there is a risk that if an accused is forced to give out his password and the accessed data reveals something that ‘could go against the accused’, this could endanger his right against self-incrimination. may fall.
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