Action should be taken against investigating officer who leaks private data of accused to third parties

GENERAL OVERVIEW

• The Karnataka High Court in a significant judgement held that an investigating officer has no right to disclose the private data seized from smartphones or electronic gadgets of an accused to a third party, without the written permission of the court concerned.
• The Court, however stated that such data recovered during the course of investigation would not amount to violation of Right to Privacy, as it is covered under the exceptions given in the KS Puttaswamy’s judgement (in which right to privacy was held to be fundamental right)
• The Karnataka HC also held that an investigating agency cannot retain the username and password of the accused person during the investigation. The investigating agency should download and store the data required from the social media platforms and should give back the changed login credentials to the accused .

FURTHER DETAILS

• A single bench of Justice Suraj Govindaraj held "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"
• Justice Suraj Govindaraj was hearing a petition filed by Virendra Khanna accused in the infamous sandalwood drug case, who challenged the order passed by the Special NDPS Court dated 14-09-2020 by which it directed the petitioner to cooperate for unlocking his mobile phone seized by the police as illegal and abuse of process of law.
• The court held that a search warrant is necessary for the examination of a smartphone, laptop or email account of an accused.
• If the accused refuses to provide password, passcode or biometrics, on an application made by the prosecution, the court can then direct the service provider to unlock the smartphone or email account.
• If the investigating agency is unsuccessful in hacking into the smartphone or the email account 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.
• In the petitioner’s argument senior advocate Hashmath Pasha submitted that insisting the petitioner to unlock his mobile phone which contains his personal information is violative of Right to Privacy as held by the Supreme Court in the case of Justice KS Puttaswamy.
• However, the prosecution opposed the plea as the order directing the petitioner to furnish the password does not violate any of his rights under Article 20(3) of the Constitution and Section 161(2) of the Code of Criminal Procedure,1973.

COURT OBSERVATIONS

• Following which the court held that "The Court cannot per se issue any directions to the accused to furnish the password, passcode or Biometrics and direction to cooperate. The gathering of information and/or evidence mode and methodology of investigation is in the ex-facie domain of the Investigation officer”.
• The disagreement raised by the petition about right to privacy, the bench said "Once the investigating agency has an access to a electronic equipment more particularly smartphones and/or laptops the 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”.
• Justice Govindaraj also said that “By providing off password, passcode or biometrics, there is no oral statement or written statement being made by the accused like the Petitioner herein, therefore it cannot be said to be testimonial compulsion”.
• The court held, “A direction to provide a password, passscode, 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”.

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