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

When IT Act, 2000 is applied, IPC cannot be applied by Police in the FIR

IT Act is a Special Act: case laws By Advocate (Dr.) Prashant Mali
Sharat Babu Digumarti Vs. Govt. of NCT of Delhi. 
MANU/SC/1592/2016. 
Gagan Harsh Sharma and Ors. Vs. The State of Maharashtra and Ors. MANU/MH/3012/2018.
Ajay Murlidhar Batheja Vs. The State Of Maharashtra and Ors. MANU/MH/  /2018.

Special Law:  A law that applies to a place or especially to a particular member or members of a class of persons or things in the same situation but not to the entire class and that is unconstitutional if the classification made is arbitrary or without a reasonable or legitimate justification or basis 1.

The Indian Parliament enacted in the Fifty-First Year of the Republic of India, an act called the Information Technology Act, 2000. This act is based on the resolution A/RES/51/162 adopted by the General Assembly of the United Nations on the 30^TH January 1997 regarding the model law on the electronic commerce earlier adopted by the United Nations Commission on International Trade Law (UNCITAL) in its twenty-ninth session.

The Act is here to protect and provide certain means of redressal even to the owner of a single computer, computer system or computer network located in India which has been violated by any person. The act is the first step to give necessary confidence and protection to the said owner.

The said Act is a special act as it is said section 81 of the act which reads as follows :

Act to have overriding effect.-“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this act shall restrict any person from exercising any right conferred under the Copy Right Act, 1957 or the Patents Act , 1970(39 of 1970)”.

In the case of Sharat Babu Digumarti v Government (NCT of Delhi) [(2017) 2 SCC 18]  the accused were charged with offences under Section 67 of the IT Act

and Section 292 of the IPC. The question before the Supreme Court was whether the accused who was discharged under Section 67 of the IT Act could be prosecuted under Section 292 of IPC. Placing reliance on non-obstante provisions under Section 81 of the IT Act and Section 67A and 67B, it was held that charge under Section 292 could not survive. The decision was on the basis that Sections 67, 67A and 67B was a complete code regarding offence concerning publishing and transmitting obscene material in electronic form and non-obstante provision under Section 81 makes IT Act a special law that will prevail over the general law, IPC.

On 26 October 2018, a two-judge bench of the Bombay High Court vide its judgment in Gagan Harsh Sharma And Anr vs The State Of Maharashtra And Anr on 26 October, 2018 (Criminal Writ Petition No 4361 of 2018) held that when the offence is sufficiently covered under the provisions of the Information Technology Act, 2000 (IT Act), the IT Act will apply as lex specialis to the exclusion of the Indian penal code, 1860 (IPC). The Bombay High Court vide its judgment quashed and set aside the First Information Report (FIR) insofar as the investigation into the offences punishable under the IPC were concerned, on the basis that the ingredients of offences alleged under IPC were the same as compared to the ingredients of the offences alleged to have been committed under IT Act.

I Got this Bail in the sessions court. Police often apply IPC Section 379 in data theft cases along with Section 43 & 66 of the IT Act,2000 .

I argued along with above case laws for non-applicability of IPC S379 which was only added by police to make the offense Non-Bailable, special Act i.e IT Act,2000 when applied IPC sections do not apply. Court has accepted my argument on the merits of Law and granted the Bail

Bail Order of sessions court  - Download Link

In the case of Ajay Murlidhar Batheja vs The State Of Maharashtra And Anr on 26 October 2018 (CRIMINAL APPLICATION NO.1217 OF 2018) the Bombay high court held “We are therefore not inclined to quash the said FIR as far as the offences under the Information Technology Act are concerned, however, we hold that the invocation and application of the provisions of the Indian Penal Code and specifically, Section 420, is not sustainable in light of the judgment Sharat Babu Digumarti v/s. Government (NCT of Delhi) (Supra)”.

Thus we can see that the provisions of this Act will prevail notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Nevertheless, by virtue of new proviso the scope of the overriding effect shall not restrict any person from exercising any right conferred in Copy Rights Act,1957 or the Patents Act,1970. The idea behind the new proviso is to protect the rights of intellectual property rights holder under the Copyright At or the Patents Act.

Conclusion:

It is often found that police in cybercrime matters to make the offence nonbailable will add 379 or 420 or 408 of the Indian Penal Code. The above case laws clearly indicate that when sections of the IT Act,2000 are applied sections from the general law namely IPC should not be added.

By Advocate (Dr.) Prashant Mali [MSc (Computer. Sci.) LLB, LLM, Ph.D. in Cyber Law]

Mobile: +919821763157

Email: cyberlawconsulting@gmail.com

Twitter: @AdvPrashantMali

References :

1. “Special law.” The Merriam-Webster.com Legal Dictionary, Merriam-Webster Inc., https://www.merriam-webster.com/legal/special%20law. Accessed 14 January 2020.

E-tender Landmark case judgment in Shapoorji Pallonji Co Vs State, Mhada, NIC & Ors

Final Judgement for Download

E-tender case of BDD Chawl Development project of MAHADA
Verified button pressing not registered on the software, but the tender files submitted on the server. Hon. Bombay HC asks NIC to team with MAHADA to submit the uploaded files and consider Shapoorji Pallonji Co. Pvt. Ltd as valid bidder.

This was the best landmark judgement where i (Prashant Mali) was acting as Expert Legal Counsel in e-tender matter along with Iqbal Chagla & Ravi Kadam (famous Sr. Advocates). My Legal opinion delivered earlier played a crucial role in defending the matter.
For this was one of the historical case in my carrier and also is a landmark case in e-tender and Information technology domain.

Shapoorji Pallonji & Company Pvt. Ltd. Vs State of Maharashtra, Mhada, NIC & Ors

A interesting Judgement in e-tender & technology Case of Bombay High Court

11000 Crores India Biggest Redevelopment Project of BDD Chawls in Mumbai

The bid document was to be down loaded from the e­tender website ww.mahatenders.gov.in from 3rd April, 2017 to 17th May, 2017 and the bidders were advised to refer to bidders' manual kit available at http://mahatenders.gov.in for details about e­tender process to be followed. The last date of the submission of the OnLine bid was scheduled as 17th May, 2017 which was extended from time to time and lastly it was fixed as 27th July, 2017 at 13.00 hours IST. NIC was entrusted with the duty of officially hosting, designing and developing websites and servers for various governmental agencies as an expert body and hosts http://mahatenders.gov.in on its server, this particular tender for BDD Chawls was hosted for MHADA.

Shapoorji Pallonji Pvt. Ltd raised certain pre­bid queries and uploaded its technical and financial bid on 27th July, 2017 at about 12.16 hrs on e­procurement system . 

The Contention

In this case, the Shapoorji Pallonji Pvt. Ltd my client has uploaded the technical and financial documents before the bid submission end date and time. However, it was alleged that they have not clicked on the freeze button. Unless or otherwise the freeze button is clicked, the document will not be available to the tender inviting authority i.e MHADA and will remain in the area allocated for the bidder in the servers of NIC.
What was the solution:
So in Public Interest NIC was needed retrieve the encrypted bid files uploaded to their servers by my client and submit the uploaded files to MHADA for decryption and consideration for bidding .

Court held that that technology has its own glitches and the moot question is whether such glitches, which causes substantial injustice are permitted to be cured manually. Court said when as on today we have not reached a stage where the systems is full proof and gives a guarantee that it is not susceptible to any error.The impact of technology in our life today, is unimaginable. We use technology every day and it has saved us of time and efforts. Introduction of the e­-tendering system has made the cumbersome process of tenders simple, faster and also free from unnecessary human intervention. However, in a situation with which we have dealt with above, the question is whether the use of the technology has offered solutions or it has created issues. The increased dependency on modern technology has reduced our creativity and human being is dependent upon the said technology which undisputedly is an useful servant but a dangerous master. In words of Albert Einstein “human spirit must prevail over technology”. 
In the present case in hand court observes that uncertainty prevails in certain areas and no technology can make the system 'full proof' and as such a situation where the technology can err, we cannot completely exclude the element of human intervention in exceptional circumstances. Ultimately, it is the human being who controls the technology and when it errs, it is for the human being to rectify it. No solution is coming from the expert and the technology operator­ NIC as to what happens if the “freeze button is not clicked”. 
On the other hand, the NIC itself shows that once the bids are uploaded, they remain safe and saved and human intervention is not possible. Court felt it expedient to intervene in the technological procedure since we feel that the technology has failed to serve its intended purpose in the present case and interest of justice call for intervention. Every citizen has legal and fundamental rights which are required to be protected and in a digital world the said rights cannot be lost sight of but the same are to be protected by providing alternative and effective solutions, to be introduced into the modern technology/web­system and in the process of tender it is very much necessary to ensure that the bidders are not shunted out of the procedure only on account of any technical glitch and technology needs to be developed in a manner to cater to their needs without causing any delay in the scheduled time. We also makes it clear that we are inclined to grant relief to the petitioners, considering 'public interest and the fact that the bid of petitioners (technical/financial) are already sealed after their uploading and no changes are possible now, and we treat this as sealed packets submitted within date and time as per tender document.

Court issued directions to the NIC to access the files containing the bid documents of the petitioners and transfer and/or make it available to respondent no.2 MHADA which would decrypt the said files and consider the bid documents of the petitioners as a “valid bid” with the assistance of the NIC and open the technical bid of the Shapoorji Pallonji Co. Pvt Ltd..

Final Judgement for Download

Cyber Stalking 354D Fastest Decided Case in India

India's fastest decided Cyber Stalking Case under IPC 354D for Sending Obscene messages on WhatsApp and Talking Obscene on Phone. 

The Story:

Mr. Atul Ganesh Patil use to work as a Security Guard in  company called "Motherson" which manufactures Bumpers of car and is located in Chakan MIDC near Pune in Maharashtra. The Victim girl had come for job interview and at the entry had written down her personal mobile Number in the entry Register. The young guard who is resident of Yavatmal District and worked in Chakan, copied down the number from register, saved it in his mobile and started sending obscene WhatsApp messages from his mobile phone and even called her to talk obscene things thereby committing crime of stalking on her. Technically i feel had committed two more crimes i.e Data Theft and Breach of Privacy. I have seen such crimes happening across India, where the cell number is obtained and girls are chased, i see after digital payments have increased and for digital wallet purpose cell phones are shared, privacy compromise via mobile number sharing has increased in India. 

In this case, Victim blocked this convicted guard on her phone and social media. The desperate guard then started chasing her by sending obscene messages from his friends and known person mobile phones.

Police traced all these phones.

These all people whose Cyber stalking case law cyber law cyber crime obscenity case law WhatsApp case law state v Patil phones were used to send messages were made witness and later the accused Guard also accepted his crime. Judge pronounced his Order in open court .

Case Details: 

"State Vs Atul Ganesh Patil"

The FIR No. 17/17 was registered in Chakan Police Station on 10/01/2017 

near Pune.

Case decided and conviction ordered in 48 Hours. 

The investigation was done in 24 Hours and  recording of 5 Witness also was completed today on 11/01/2017. 

Today itself, punishment for 2 years rigorous imprisonment and Rs.500/- fine was pronounced in Khed (Rajguru Nagar) JMFC Court near Pune in the state of Maharashtra in India which Presided by Judge Mr. Y J Tamboli. 

What is Section 354 D of The Indian Penal Code

(1) Any man who—

i.         follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

ii.         monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking;

Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

i.         it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

ii.         it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

iii.         in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

Classification under schedule 1 of CrPC

1. Upto 3 years + Fine for first conviction and is Bailable

2. Upto 5 years + Fine for second or subsequent conviction and is Non-Bailable

Composition under Section 320 of CrPC

Offence in Non Compoundable

Case Laws other than above for 354 D

1. Dara Singh And Another vs State Of U.P. on 17 June, 2016

Bench: Amar Singh Chauhan, Allahabad HC
2. Aarti Katiyar   Vs.  State of Raj.  S. B. Cr.  MISC. PETITION  NO. 3463/2013, Rajasthan HC

What do we mean by a “right of privacy”?

Justice Cooley in 1888 defined it simply as a right to be left alone. Alternatively, it may be defined as a right to be anonymous. The two definitions are quite different but both are important, and the right to be anonymous is a form of privacy that has particularly significant implications in cyberspace. In legal terms, our right of privacy amounts to a right to be free from government intrusion into certain areas of our lives and a right to be free from intrusion by other individuals into our “private” lives. In India, the former is protected largely through Constitutional interpretation and a number of statutes; the latter is protected largely through the law under tort principles.

Advocate Prashant Mali

International Cyber Crime Lawyer

#cybercrime #cybersecurity #cyberstalking #cyberlaw #law # caselaw