Virendra Khanna v. State of Karnataka (2021) - Disclosure of personal information of an accused to a third party by an investigating officer

DATE OF JUDGMENT: 12th March, 2021.

JUDGE: Suraj Govindaraj.

PARTIES: Virendra Khanna (Appellant)
State of Karnataka (Respondent)

SUMMARY: The present case deals with the issue of whether or not an investigating officer can be allowed to share personal information of an accused to a third party without consent.

OVERVIEW

1. The court was hearing a petition by the appellant, an accused in an infamous sandalwood case, challenging the order passed by a special NDPS court, which directed the appellant to co-operate for unlocking his phone seized by the police, as illegal and abuse of process of law.
2. The respondents also filed an application before the NDPS Court for an order of permission to subject the appellant for a polygraph test because he had not given the password of his mobile phone for unlocking and also for opening two more e-mail accounts belonging to him. This application copy was not served either on the counsel for the appellant or the appellant himself, and as soon as it was filed, an order was passed to send the appellant for a polygraph test as prayed in the application, and it was ordered to the investigating officer to take the appellant for a polygraph test with proper escorts.
3. It was contended before the court that no opportunity was given to the appellant or his counsel to defend the application filed by the respondents for the polygraph test and therefore, the order of the test was not known to the appellant or his counsel. It was later brought to the notice of the court by the counsel of the appellant that the appellant was not consenting to the polygraph test as the order for the test was passed without hearing him.
4. The Hon'ble Trial Court, on appeal, directed the appellant to co-operate and furnish the password to the investigating officer. 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. It is on that basis that the respondent filed an application seeking permission of the trial court to subject the appellant to a polygraph test and the impugned orders passed.
5. The matter is now before the High Court.

ISSUES

The following were the issues analyzed by the High Court:

• Whether the order of the trial court violates the appellant’s right to privacy.
• Whether or not an investigating officer can be allowed to share personal information of an accused to a third party without consent.

IMPORTANT PROVISIONS

• Art. 21 of the Constitution: Right to life and personal liberty.
• Art. 20(3) of the Constitution: Immunity from self-incrimination.
• Sec. 161(2) of the Code of Criminal Procedure: Examination of witness by police.

ANALYSIS OF THE CASE

1. The counsel appearing on behalf of the appellant argued that insisting the appellant to unlock his mobile phone which contains his personal information is violative of right to privacy as held by the Supreme Court in the Justice K S Puttaswamy case.1
2. Furthermore, it was argued by the appellant that there is no specific law enabling the taking away of 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 use of the data contained in his mobile for the purpose of investigation.
3. The counsel further argued that since the right to privacy is recognized as a fundamental right under Article 21 off the Constitution, to take away this fundamental right, even off an accused there must be a law enacted by Parliament and the Law must meet the test of Article 21 as laid down in Menaka Gandhi's case2, i.e., it must be just fair and reasonable not illusory.
4. The counsel appearing on behalf of the State opposed the plea by contending that the application came to be filed only because the appellant did not divulge the passwords. If the appellant had divulged the password, there would have been no requirement to file the application.
5. The counsel further argued that the order directing the appellant to furnish the password does not violate any of his rights under Article 20(3) off the Constitution of India and Section 161(2) off the Code of Criminal Procedure, 1973; Article 21 of the Constitution.
6. The court held that 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 data which is stored on a smartphone or any other electronic equipment since once an investigating officer has an access to the said smartphone, electronic equipment or email account he would have complete access to the data.
7. The court further opined that the use of such data during the course of investigating would not amount to violation of the right to privacy and would come within the exceptions carved out in the Justice Puttaswamy's case. However, the disclosure making public or otherwise in court proceedings would have to be determined by the concerned judge by passing a judicial order.
8. The court held that 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 would 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 proceed against for dereliction of duty or such other delinquency as provided.
9. Mere providing access to a smartphone or e-mail account would not amount to self-incrimination since it is for the investigating agency to prove its allegation by cogent material evidence, the court held.
10. With regards to the polygraph test, the court set aside the order of the NDPS Court directing the appellant to undergo the test, by stating that 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 consent in writing to be obtained from such a person before directing the administration of the polygraph test.

CONCLUSION

The crux of the case deals with sharing personal information of an accused to a third party by the investigating officer. The court held that no such details can be shared by the investigating officer without the consent of the court.

In Ritesh Sinha v. State of Uttar Pradesh3, 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.

The court held that 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. 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.

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