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New Delhi: In an important judgment, a Delhi court recently said that an accused cannot be compelled by the Central Bureau of Investigation (CBI) to provide their password and getting this information without their consent will violate the right against self-incrimination.
Special judge Naresh Kumar Laka made the observation while dismissing an application filed by the CBI seeking the password and user ID of a computer that was seized from the custody of the accused in a case related to corruption.
“… the accused cannot be compelled to give such information and in this regard he is protected by Article 20(3) of the constitution of India as well as Section 161(2) of [the Code of Criminal Procedure],” the judge said in an order pronounced on October 29, 2022.
Article 20(3) of the constitution provides that “no person accused of any offence shall be compelled to be a witness against himself”, while Section 161 (2) of the CrPC stipulates that no person shall answer questions that “would have a tendency to expose him to a criminal charge or to a penalty or forfeiture”.
The court clarified that the investigating officer is well within his right to access the data of the computer system and its software with the help of a specialised agency or person, even at the risk of the accused losing data.
Crucially, the court also drew a line between passwords and collecting biometric information such as fingerprints, facial or iris recognition. An accused person can be directed to provide the latter.
“… in view of recent enactment of Criminal Procedure (Identification) Act, 2022 … this court is of the considered opinion that a different approach is required to be adopted for password and biometrics of the accused,” the judge said.
The case relates to the arrests that the CBI made in September 2020 when a former deputy commissioner of the Central Board of Indirect Taxes (CBIT) and two others were accused of bribery. They allegedly conspired to induce public servants to clear a consignment of imported toys that was stopped by the authorities.
The prosecutor for the CBI said that the accused was released on bail on the condition that he will cooperate with the investigation and the information sought will lead to a fair investigation.
In the 48-page order, the CBI court said that the Supreme Court has laid down the test to identify whether a particular fact, information, testimony or evidence comes within the category of “testimonial fact” or “physical material or evidence”. The first category is protected by Article 20(3) of the constitution and therefore the accused is not bound to give this information, but the second category is not protected and can be taken by compelling an accused person.
“In the present application, the CBI/IO is seeking password of computer system from accused for opening/accessing his data and not for comparision or identification purposes. Therefore, the said request of the IO comes within the first category,” the order says, according to a copy provided by LiveLaw.
The Supreme Court said that because narcoanalysis of lie detection tests involve personal knowledge of the accused and these procedures cannot be conducted without the consent of the accused. The same logic applies to a password because it also involves the import of personal knowledge.
Though the CBI did not seek the biometric data of the accused, the CBI went into the matter and said that a different approach is required. Biometric data falls under the definition of ‘measurement’ provided in the Criminal Procedure (Identification) Act, the court said. ‘Measurement’ refers to various types of physical evidence that an investigating agency may generally require from the accused – like fingerprints, retina scans, etc.
“Therefore, it can be said that an accused can be asked or directed to give his biometrics (in the form of his finger impressions, face or iris recognition) for the purpose of opening of his electronic device by the IO or the court,” the order said.
Additionally, the court said that an accused person cannot be compelled to draw the security pattern that unlocks a phone or any other electronic device because it requires the application of mind and personal knowledge and is similar to a password.
The court also noted that in India, evidence obtained through illegal means or by violating the procedure of law can still be used in certain circumstances. Therefore, there is a risk that the right against self-incrimination could be jeopardised if an accused is compelled to give their password and the data accessed reveals something incriminating, “it may be read against the accused”.