Mere providing access to a smartphone or e-mail account or biometrics would not amount to self- incrimination and testimonial compulsion

Search and seizure are important weapons in hands of the Investigating Officer and such powers should be exercised with due circumspection and discretion. Exercise of the same should not result in harassment of innocent persons. Even when a search is made without a search warrant, it would be treated that such a search or consequent seizure is conducted/made safeguards enshrined under Criminal law.

There was refusal of the accused to disclose any password, despite the direction of Court on ground that it violates his Right to Privacy, also amounts to testimonial compulsion and self-incrimination. It was held that mere direction to provide a password, passcode, biometrics would not amount to testimonial compulsion as such order of Court is only in nature of a direction to produce a document.

Merely because any document is present or available on the smartphone and or the e- mail account would not by itself establish the guilt or innocence of an accused. Both the prosecution, as also the accused/defence would be required to prove the said document or data by other evidence also. A direction to provide a password, passcode, 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. Data available on a smartphone or e-mail account would also have to be proved by the investigating agency in accordance with Law. Mere providing of password, passcode or biometrics would not amount to answering any question put forward by the Investigating Officer, and as such, it would not amount to a violation of law. By providing of password, passcode or biometrics, there is no oral statement or a written statement being made by the accused like the Petitioner, therefore it cannot be said to be testimonial compulsion.

Appearing counsel/s : Sri. Hashmat Pasha, Sri. Nasir Ali, Sri. Veeranna G. Tigadi

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