The bench of Justice Naresh Kumar Laka was dealing with an application in the case of Central Bureau of Investigation v. Mahesh Kumar Sharma & Anrs. when a question regarding the power of investigating authority to seek UserID of the computer system seized from the accused along with password of a Tally Software which was being used by the accused in the said computer system.
In this case, during the investigation a computer system was seized by the CBI and was sent to CFSL. However, the data couldn’t be recovered from the computer without the User ID and Password.
The CBI filed an application seeking a direction for the accused to provide the same.
The court allowing the appeal was of the opinion that giving password and user id does not fall in the scope of “self-incriminating action” and that an accused can be directed to give his biometrics for the purpose of opening his electronic device.
The bench stated that “No doubt, a password does not itself constitute a ‘self incriminating testimony’ against an accused who gives such password, but from practical point of view, the said password alone is not the sole objective of the IO and in fact he wants to use it for the purpose of accessing the data which is contained in a computer system or a mobile phone which is/are seized from the accused and, therefore, the said password is to be taken as integral part of the said computer system/mobile phone which is/are not severable from it. While considering the status of such information being incriminating or not, this Court cannot consider password alone in isolation.”
The court further added that no exception is made under the Cr.P.C which states that on amount of interfere with right to privacy, a piece of evidence cannot be seized by the investigating authorities or be produced before the Court.
On the other hand, there are provisions validating interference in the right of privacy of an accused such as arrest of the accused, search at the house of accused, detention and punishment to the accused which, all these actions in some way or other involve his right of privacy or free life but only on account of such interference, the right of the State cannot be undermined which have been enacted to establish law and order, peace, public order and safety of its citizens.
The bench stated that “the application of the CBI seeking password/User ID of the computer system and Tally Software of the accused is dismissed as the accused cannot be compelled to give such information and in this regard he is protected by Article 20(3) of the Constitution of India as well as Section 161(2) of Cr.P.C.”
