???? 9. ANSWER POINT No.1: Can a direction be issued to an accused to furnish the password, passcode or Biometrics in order to open the smartphone and/or email account?
The Investigating Officer, during the course of an investigation, could always issue any direction and/or make a request to the accused or other persons connected with the matter to furnish information, to provide material objects or the like. These directions are routine in any investigation. Thus, during the course of the investigation, the Investigating Officer could always request and/or direct the accused to furnish the password, passcode or Biometrics, enabling the opening of the smartphone and/or email account. It is up to the accused to accede to the said request and or directions. If the accused were to provide such a password, passcode or Biometrics, the Investigating Officer could make use of the same and gain an access to the same.
???? 10. ANSWER TO POINT NO.3: Can a Court issue a suomoto order to the accused to furnish a password, passcode or Biometrics?
10.1.The Court cannot per se issue any directions to the accused to furnish the password, passcode or Biometrics and direction to cooperate would not amount to a direction to furnish password, passcode or Biometrics. The gathering of information and/or evidence, mode and methodology of investigation is in the exfacie domain of the Investigating Officer.
10.2. The court by itself cannot suo moto order for furnishing of the password, passcode or Biometrics. The Court is not part of the investigation. The Court can only act on an application being filed by either of the parties.
???? 11. ANSWER TO POINT NO.4: In the event of a direction being issued and the accused not furnishing the password, passcode or Biometrics, what is the recourse available to an Investigating Officer?
11.1. In the event of the accused not providing the password, passcode or Biometrics, the Investigating Officer can approach the Court seeking for necessary directions to the accused to provide the same and/or carry out a search of the smartphone or any electronic equipment.
11.2. The Investigating Officer could approach the concerned Court seeking for issuance of a search warrant to carry out a search of the smartphone and/or electronic equipment.
???? 12. ANSWER TO QUESTION NO.5: What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?
12.1. The requirement for a search of a smartphone and/or electronic instrument could arise under two circumstances.
12.1.1. Emergent circumstances
12.1.2. During the regular ordinary course of the investigation
12.2. It is in light of these two circumstances that the nature and methodology of a search would have to be considered.
12.3. The Cr.P.C. provides a framework for carrying out a search of any premises or the like. There is no particular or different framework provided for the purposes of search of a smartphone or electronic equipment, computer, server etc. Thus, it is the framework under Cr.P.C. and to some extent under the Information Technology Act, which would have to be made applicable to searches of these kinds.
12.4. Chapter VII of Cr.P.C. provides for search, seizure, production etc. Section 91 of Cr.P.C. enables any Court or any officer in charge of a police station to issue summons or order to the person in whose possession or power such a document or thing are believed to be requiring him to attend and produce it at the time and place indicated in the said summon or order.
12.5. Section 92 of Cr.P.C. provides the power to the District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court to require the postal or telegraph authority for the purposes of investigation, enquiry or trial to order the postal or telegraph authority to deliver the document, parcel or thing in the custody of postal or telegraph authority. Similarly, the Commissioner of Police or District Superintendent of Police may require the postal or telegraph authority to cause search, detain the document or parcel and produce the same before the Court. I t is pertinent to mention here that the correspondence email etc., would be covered under the Telegraph Authority.
12.6. Section 93 of the Cr.P.C. provides powers to the Court to issue a search warrant 12.6.1. On a person not willing to produce a document or a thing as directed under Section 91 of Cr.P.C., or 12.6.2. Where the document or thing is not known to be in possession of any person or 12.6.3. Where the Court considers that for the purpose of any enquiry, trial or other proceedings, a general search or inspection would serve the purpose.
12.7. In terms of Section 93 (2) of Cr.P.C., the Court could also restrict the search to a specific place, a specific time or a specific purpose.
12.8. Section 94 of Cr.P.C. confers power on certain Courts to search places suspected to contain stolen property, objectionable article, forged documents, counterfeit material, obscene objects, instruments or materials used for the production of any item under Section 94 (2) of Cr.P.C., and to take such action as may be required in terms of Section 94(1) of Cr.P.C., thereof.
12.9. In terms of Section 100 of Cr.P.C., in the event of any place being closed, any person residing in or being in charge of such place shall on demand of the officer or other person executing the warrant and on the production of the warrant allowing free ingress thereto. As also afford all reasonable facilities for a search therein. In the event of any person suspected to be concealing any article, a search of such person could also be made subject to however restrictions that a search of any woman could be made by a woman.
12.10. During the process of search in terms of Section 102 of Cr.P.C., any particular item could be seized by a person conducting a search on fulfilling certain criteria.
In view of the above, the said Chapter VII provides several powers to the Police or Magistrates, which could include the power to search and seize a smartphone, computer, server or any other electronic item or equipment.
12.12. A search and seizure of a smartphone can also be permitted in terms of the above provisions as contained in the Cr. P.C. As observed above, in terms of Section 100 of Cr.P.C., even a closed place can be searched by the persons searching directing any person incharge of a place to open the same and provide all facility. It is in the background of the above provisions that the aspect of search of a smartphone or electronic equipment, including an e-mail account will have to be considered.
Search and Seizure in Emergent circumstances
12.13. It may happen that there may arise certain emergencies or exigencies for a search of a smartphone or electronic equipment to be carried out like if the data is going to be immediately destroyed, there is a danger of equipment itself being destroyed, the possibility of the equipment
not being available, etc.
12.14. In terms of Section 102 of Cr.P.C., if there are any emergency circumstances, the Police Officer could seize the equipment; if there is any suspicion that either the object has been stolen or which create suspicion of commission of any offence.
12.15. The second aspect as regards of suspicion of any commission of any offence is wide enough to cover a plethora of situation. Thus, in an emergent situation, the Police Officer could seize the electronic equipment.
12.16. In emergent circumstances, it cannot be expected of the Investigating officer to rush to a court of Law to obtain a warrant, such a requirement would amount to negating their powers and impinging on their functions. When there is adequate time to obtain a warrant, the same ought to be obtained, however, if an urgent search is to be conducted and it may be difficult to get a search warrant, certain safeguards will have to be observed and conditions fulfilled.
12.17. There must exist reasonable grounds for believing that it is necessary for carrying out a search of the Smartphone or Electronic Equipment with expediency and that if such a search is not conducted immediately, the conduct of the offence may be expedited and/or the evidence thereof be lost.
12.18. In such a scenario, there must be a recording in writing made by the Investigating officer, specifying in writing as far as possible the reasons for conducting such a search without a warrant. The objective satisfaction by such officer of the emergent nature of the search has to be recorded in writing in sufficient detail. Unless these conditions are fulfilled, a search without a warrant would be without jurisdiction, these conditions are necessary to safeguard the interest of the person and or organization searched, more so when a search so conducted would also impinge on the right to privacy of such a person.
12.19. In terms of Section 165 of Cr.P.C., if the investigating officer during the course of investigation has reasonable grounds for believing that anything required for the purpose of investigation would be found in a place within the limits of his police station of which he is incharge of or attached to, he may without delay after recording in writing the grounds for belief and specifying in writing as far as possible, the thing for which search is to be made, search any place within his limits of jurisdiction. However, the copies of any record made to conduct such a search would have to be sent to the Magistrate empowered to take cognizance of an offence and a record of the same. Though a search without reasons and without following the procedure may be illegal, the illegality of the search would not make any seizure made during the search inadmissible as held by the Hon’ble Apex Court in the case of Dr.Pratap Singh vs. Director of Enforcement Foreign Exchange Regulation and others reported in (1985) 3 SCC 72. However, the Courts would have to be cautious while dealing with the evidence collected in such an illegal search.
Search and Seizure during the regular ordinary course of the investigation
12.20. If the search is required to be carried out in a normal and regular course of an investigation, in that situation, the investigator or investigating agency would have sufficient time to plan out the manner of carrying out such a search as there being no emergency or immediate requirement of carrying out such search.
12.21. The investigating officer could issue a notice under Section 91 of Cr.P.C., calling upon the accused or any other person to produce any particular document or equipment as stated above. If not so produced, a search warrant could be sought for from the Court of law. Be that as it may without issuance of a notice under Section 91 of Cr.P.C., a search warrant could be issued inasmuch as the issuance of a notice under Section 91 of Cr. P.C. is not a pre-condition for issuance of a search warrant under Section 93 of Cr. P.C. Once a search warrant is issued and received by the accused or any other person it would be the obligation of such person to permit the search and/or to provide document or thing called upon.
12.22. 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.
12.23. The provisions referred to and mentioned deals with search and seizure. Electronic equipment occupies a slightly different position, in that it is not only the seizure of the phone and equipment, but once it is seized, the said equipment is required to be opened more often than not such equipment are locked by password, passcode or biometrically. Thus, for the purpose of opening and/or accessing the data on the said equipment, it would be required for the accused or person in charge of the said equipment to provide a password, passcode or open the same using the biometrics.
12.24. As mentioned above, in terms of Section 100 of Cr.PC., a person in charge of a closed place is also required to permit such search and, in fact, facilitate such search.
12.25. Applying the said principle to a smartphone, electronic equipment or an email account, it would but be required for the accused or a person in charge of electronic equipment to provide the password, passcode or biometrics to open the Smartphone, computer equipment or email account.
12.26. It is these aspects which have to be considered in the present circumstances. Section 69(1) of the IT Act empowers the specified officers to pass orders compelling the decryption of any information, generated, transmitted, received or stored in a computer resource which would also include a smartphone.
12.27. When the said authority is satisfied that it is necessary for the purpose of any investigation into any offence, however, an officer, before ordering such decryption, is required to record in writing the reasons for calling upon for such decryption and inform the person of the possibility of prosecution if he does not comply with a request.
12.28. Search and seizure are important weapons in the hands of the officers concerned therefore it is but required that such powers should be exercised with due circumspection and discretion, and the same should not result in harassment of innocent persons. When a search is made with a warrant, the procedure required to be followed is stated in the Cr. P.C, which need to be so followed. Even when a search is made without a search warrant, it would be treated that such a search or consequent seizure is conducted/made the safeguards enshrined under the Cr. P.C.
12.29. As observed above, the officers conducting a search are required to comply with the procedural requirements of Cr.P.C, some of them though not exhaustive,are enumerated hereunder:
12.29.1. A lady officer is required to be present if the accused is a lady or if the equipment is located in a place where there are ladies present.
12.29.2. The search and seizure should normally be done after sunrise and before sunset. However, if it is conducted after sunset and before sunrise, the grounds as to why it was felt necessary to take such action should be recorded and copy of the grounds so recorded must be sent within 72 Hours to the immediate official superior.
12.29.3. The officers before starting the search are required to disclose their identity by showing their identity cards to the owner of the premises.
12.29.4. Search should be made in the presence of two independent and
respected witnesses of the locality.
12.29.5. A Panchnama / Mahazar, should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. This document and the list of things seized needs is to be signed by the witnesses and the owner of the premises before whom the search is conducted and also by the officers who are carrying out the said search.
12.29.6. After examination of the seized goods or things by the authority, the same to be sent for any technical/forensic examination within a period of 72 hours thereof.
12.29.7. A search and seizure report to be prepared containing the details of the conduct of the search and outcome, containing the names of the officers and other persons including the panchas and witnesses who participated in the search.
12.29.8. A copy of the Panchnama / Mahazar prepared to be furnished to the person in- charge/owner of the premises being searched under acknowledgement.
???? 13. ANSWER TO QUESTION NO.6:Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused?
13.1. Since, as stated above, a smartphone can contain humongous data, which could also be incriminatory insofar as the person owning the said electronic equipment, including the smartphone, is concerned and it is in this background, we have to consider the providing of a password, passcode or biometrics and whether making available, this incriminatory material would amount to giving of testimony and or a statement in terms of Section 161 of Cr.P.C.
13.2. On a notice being issued under Section 160 of Cr.P.C., any witness could be examined by the police, the witness could be the accused himself.
13.3. Such a statement needs to be reduced to in writing wherein such person is required to answer all questions relating to such case, other than the questions, the answer to which would have the tendency to expose him to a criminal charge or a penalty or forfeiture. That being a right to protection of self-incrimination as enshrined under Article 20 of the Constitution of India.
13.4. Though Mr Tigadi, learned counsel for the Respondent contended that the disclosure of password is in the nature of giving specimen signatures or handwriting and therefore a direction could be issued under Section 311-A of the Cr. P.C, I’m of the considered opinion that the providing of a password, passcode or biometrics is more than that, and a direction cannot be issued in that manner.
13.5. In the event of password, passcode or Biometrics being provided and the Investigating Officer gaining access to the said smartphone and/or electronic equipment or email account, the data so gathered would have to be treated as any other document and/or object secured during the course of investigating like in the case of securing a murder weapon. The same does not by itself prove that the accused has committed the murder, similarly, the data gathered by itself would not prove the guilt of the accused. The data gathered would have to be proved during the course of the trial as done in any other matter.
Karnataka High Court
Mr. Virendra Khanna vs State Of Karnataka
By: on 12 March, 2021
Author: Suraj Govindaraj J