Police needs warrant to ask PASSWORD from accused

Police need a warrant to ask password from the accused: Case Law

Case Law Details: Virendra Khanna Vs State of Karnataka 

Petition No. 11759 of 2020 (GM-RES)

A search warrant is necessary for the examination of a smartphone, laptop, or email account of an accused. Held by Karnataka High Court.

An accused cannot be constrained to disclose the password/passcode of his gadgets or accounts through a mere order of a trial court to cooperate with. Section 100 of CrPC provides general procedures that need to be necessarily followed at the time of the search. I say that if the Investigation officer leaks the data A case can be filed under section 72 of The IT Act,2000.

A search warrant is a written order which is issued by a Judge/ Magistrate or a Court to a police officer or any other person authorizing them to conduct a search of a person, location, or vehicle for evidence of a crime and confiscate illegal evidence of a crime. The court in Kalinga Tubes Ltd. v. D. Suri and in many other cases has cautioned the police officer to use search warrant with a little precaution and care and do not abuse their power.

Police officer under a warrant which is issued under any of the provisions of Sections 93, 94, 95, and 97. A search by any other police officer or any other person would be illegal and the sentry into such place will also be unlawful, Private cybercrime investigators beware.  In all situations of search and seizure, the investigating police should follow the procedures laid down under Sections 100 and 165 CrPC

Is asking for a password considers self-incrimination?

The protection against self-incrimination has been provided as a special fundamental right, under Part III [Under Article 20(3)] of the Constitution of India. It provides that no person who is accused of an offense can be compelled to be a witness against himself.

In several cases, the constitutional validity of a search warrant has been questioned. For instance, in the case of V. S. Kuttan Pillai v. Ramakrishnan, wherein it was opined by the court that a search of the premises occupied by the accused does not amount to compulsion on him to give evidence against himself and hence was not violative of Article 20(3) of the Constitution of India.

The High Court laid down the procedure for examining smartphones or email accounts (2021) :

It would be required for the prosecution to approach the Court to seek a search warrant to search the smartphone and or e-mail account. Once a search warrant is issued, it is up to the accused to provide the password, passcode etc. 

The investigating agency could also serve a notice on the accused indicating that in the event of the accused not furnishing the said password, passcode biometrics etc., an adverse inference would be drawn against the accused as regards the aspects notified in the said notice. The accused can then, in order to avoid the adverse inference being drawn, furnish the password, passcode, or biometrics to the authorities.

In the event of the accused or any other person not providing the password, passcode or biometrics, on an application made by the prosecution, the court could direct the service provider, manufacturer of smartphone and/or e-mail service provider, to open or unlock the smartphone and/or email account to enable access to the said smartphone and/or email account.

In the event of the manufacturer and the service provider not facilitating the opening of the smartphone, email account or computer equipment, then the Court on an application being filed in that regard permit the Investigating Officer to hack smartphone and/or email account.

The Investigating agency would be empowered to engage the services of such persons as may be required to hack into the smartphone and or e-mail account and make use of the data available therein, which would be akin to breaking open a lock or door of the premises when the accused were to refuse to co-operate with the Investigating officer and open the door of locked premises.

In the event of the investigating agency is unsuccessful in hacking into the smartphone and or the e-mail account and 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 this Karnataka case, the High Court set aside the trial court’s order which asked the accused to furnish the password while directing him to cooperate with the investigation. The Court said that the investigating officer will have to seek a search warrant as per the above procedure to examine the smartphones /email accounts. There are two methods in which police can affect search and seizure. 

Password seizure: One under a warrant which is issued under any of the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant under any of the provisions of Sections 103, 165 and 166 of CrPC.the basic provisions as to search and seizure are laid down in Section 100 of CrPC. The procedure set out in the section is generally followed in offenses committed under the Indian Penal Code as well as in special and local laws with a little variance. Thus, in all situations of search and seizure, the investigating police should follow the procedures laid down under Sections 100 and 165 CrPC. Section 102 provides the power of police officers to seize certain property i.e PASSWORD