In a landmark decision1, the High Court of Karnataka ("Karnataka HC"/ "HC") has inter alia issued a slew of guidelines for carrying out search and preservation of electronic devices in criminal investigations, where Rules governing the concerned police department are silent on the subject. This decision, which may soon be followed by Courts and investigating agencies across India, is likely to have far-reaching implications on the course of ongoing and future criminal trials, especially those involving white-collar offences.

Background

These guidelines came to be issued in the context of an investigation under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Petitioner-Accused had filed a Writ Petition challenging certain interlocutory orders passed by the Trial Court vide which he was directed to: (i) cooperate with the investigation by furnishing the password of his mobile phone ("Password Order"); and (ii) undergo a polygraph test for failing to furnish his mobile phone/ email passwords, without hearing him on the said aspect or obtaining his consent ("Polygraph Order").

Rival Contentions:

A. Petitioner-Accused

Relying on Selvi2, the Petitioner contended that the Polygraph Order had the effect of violating his right against self-incrimination as guaranteed under Article 20(3) of the Constitution of India and Section 161(2) of the Code of Criminal Procedure ("CrPC"). Petitioner argued that involuntarily subjecting him to a polygraph test would tantamount to extracting personal knowledge from him. Arguments were also advanced on the ground that the Polygraph Order was passed without giving notice to him, thus violating the principle of audi alteram partem, ie, giving him the right to a fair hearing. Further, relying upon Puttuswamy3, Petitioner contended that any direction calling upon him to furnish his password violated his right to privacy under Article 21 of the Constitution; and that there was no mandate under Sec 53 and Sec 311-A, CrPC or any other provision which empowered the Trial Court to direct him to furnish passwords.

Respondent-State

Per contra, it was argued by the State that revealing a password would not tantamount to self-incrimination. A distinction was sought to be drawn between the terms 'to be a witness' and 'furnishing evidence', with the latter term having a wider connotation which would include situations where a person is simply called upon to submit documents or records to the Court/ investigating officer during the course of an investigation. It was contended that furnishing a password does not per se constitute incrimination and the same is merely an act of giving access to the investigating officer. In this regard, Puttaswamy was relied upon to assert that the right to privacy is not absolute and would be subject to legitimate State interests, i.e., the prevention and investigation of crimes. Furnishing of a password was also likened to providing thumb impressions or voice samples which an accused person can be compelled to furnish under the CrPC.

Decision on merits

Through a detailed Order, the Karnataka HC held that while a Court cannot suo moto order an accused to furnish passwords/ passcodes/ biometrics, an investigating officer can issue such directions in the course of an investigation. If the accused were to not comply with the officer's directions, the officer could then apply to the Court seeking issuance of a search order. In this regard, the Karnataka HC stated that the necessity to search a mobile phone or laptop would arise in two circumstances – in an emergency when there is an apprehension that the potential evidence contained on a device may be destroyed, and in the regular ordinary course of an investigation. The HC held that in the former scenario, it would be futile to insist on a search warrant, and it would instead be appropriate if the investigating officer recorded his reasons in writing as to why such search was being conducted without a warrant, i.e., objective satisfaction by such officer regarding the emergent nature of the search would have to be recorded in sufficient detail, failing which the search without warrant would be without jurisdiction. In the latter scenario, the HC held that it would be essential to procure a search warrant to obtain the requisite passwords. Chapter VII of the CrPC which provides for powers to search and seize was relied upon to assert that smartphones can be searched as well. Should an accused person resist a search warrant and/ or a direction to provide a password, an adverse inference can be drawn against him/ her and the investigating officer can proceed to get the device hacked to obtain the information.

The HC then proceeded to rebuff the Respondent's contention that furnishing passwords was equivalent to providing handwriting or specimen signatures. It also held that evidence that is obtained from a smartphone cannot ipso facto prove the guilt of the accused. Such evidence is on par with other evidence that has to be cumulatively relied on to decide the guilt of an accused. Since evidence obtained from a mobile device cannot ipso facto render an accused person guilty, the HC reasoned that the act of giving passwords cannot amount to self-incrimination.

The HC also held that furnishing passwords does not violate the right to privacy, and information that is obtained from the concerned device can be used in the course of the investigation as it falls within the exceptions carved out in Puttaswamy. However, it acknowledged that the investigating officer would have access to a plethora of personal information of the accused, which is to be handled in the same way that evidence in physical forms is handled; and that the investigating officer would be liable for misuse of any personal information or sharing of information with third parties.

The HC thereafter proceeded to set aside the Password Order since no search warrant had been obtained, in the absence of which, directions to furnish passwords could not be issued. Liberty was however given to the prosecution to file requisite applications to validly search the mobile phone. The Polygraph Order was also set aside since the Petitioner was not given an opportunity of hearing.

Novel Guidelines on search and preservation of smartphones, laptops, etc:

While ruling on the merits of the matter, the Karnataka HC observed that currently there are no rules formulated by the police department (in this case, different wings of the Bengaluru Police) regarding the search and preservation of smartphones, laptops and email accounts, and opined that it would be desirable to do so. Till such rules are formulated, the Karnataka HC directed that the following minimum guidelines be implemented:

Personal computers/ laptops:

  • When carrying out a search of the premises, as regards any electronic equipment, smartphone or an e-mail account, the search team would have to be accompanied by a qualified Forensic Examiner. During such searches, the investigating officer should not use the computer or attempt to search a computer for evidence, which ought to be conducted by a qualified person, eg a Forensic Examiner;
  • At the time of the search, the place where the computer is stored or kept is to be photographed in such a manner that all the connections of wires including power, network, etc are captured in such photographs. Further, a diagram should be prepared to show the manner in which the computer and/or the laptop is connected;
  • If the computer is in the power-off mode, the same should not be powered on. If the computer is powered on and the screen is blank, the mouse could be moved, and as and when the image appears on the screen, a photograph of the screen is to be taken. If the computer is powered on, the investigating officer should not power off the computer. As far as possible, the investigating officer is to secure the services of a Forensic Examiner to download the data available in the RAM since the data would be lost on powering down. If the computer is switched on and connected to a network, the investigating officer is to secure the services of a Forensic Examiner to capture volatile network data, eg IP address, actual network connection, network log, etc;
  • MAC address also to be identified and secured;
  • If the Forensic Examiner is not available, then the search team should unplug the computer, pack the computer and the wires in separate faraday covers after labelling them;
  • In the case of a laptop, if the removal of the power cord does not shut down the laptop, to locate and remove its battery. If the laptop battery cannot be removed, then shut down the laptop and pack it in a faraday bag so as to block any communication to the said laptop since most laptops nowadays have wireless communication enabled even when the laptop is in standby mode.

Seizure of networked devices:

Apart from the above steps regarding the seizure of the computer, laptop, etc, if the said equipment is connected to a network:

  • Ascertain as to whether the said equipment is connected to any remote storage devices or shared network drives, and if so, to seize the remote storage devices as also the shared network devices;
  • Seize the wireless access points, routers, modems, and any equipment connected to such access points, routers, modems which may sometimes be hidden;
  • Ascertain if any unsecured wireless network can be accessed from the location. If so, identify the same and secure the unsecured wireless devices since the accused might have used the unsecured wireless devices;
  • Ascertain who is maintaining the network and identify who is running the network – get all the details relating to the operations of the network and the role of the equipment to be seized from such network manager;
  • Obtain from the network manager, network logs of the machine to be searched/ seized so as to ascertain the access made by the said machine of the network.

Mobile devices (smartphones, mobile phones, tablets, GPS units, etc):

  • Prevent the device from communicating to the network and/or receiving any wireless communication either through Wi-Fi or mobile data by packing the same in a faraday bag;
  • Keep the device charged throughout, since if the battery drains out, the data available in the volatile memory could be lost;
  • Look for sim-slots, remove the sim card so as to prevent any access to the mobile network, pack the sim card separately in a faraday bag;
  • If the device is in power-off mode, the battery could also be removed and kept separately. If the device is powered on, then put it on aeroplane/ airplane mode in Android/ IOS devices respectively.

General:

  • In all cases, seized equipment to be placed in a dust-free and temperature controlled environment;
  • While conducting the search, the investigating officer to seize any electronic storage devices like CD, DVD, Blu-Ray, pen drive, external hard drive, USB thumb drives, solid-state drives, etc, located on the premises, label and pack them separately in a faraday bag;
  • Computers, storage media, laptops, etc to be kept away from magnets, radio transmitters, police radios, etc since they could have an adverse impact on the data in the said devices;
  • Carry out a search of the premises to obtain instruction manuals, documentation, etc, as also to ascertain if a password is written down somewhere since many a time the person owning the equipment would have written the password in a book, writing pad or the like at the said location;
  • The entire process and procedure followed to be documented in writing from the time of the entry of the investigation/ search team into the premises until they exit.

Comment

While questions may arise as to why the Karnataka HC stepped into a highly technical field (apart from the very efficacy of the aforesaid Guidelines), the HC nevertheless ought to be lauded for attempting to bridge the gap between statutes which are silent on the matter and the requirements of current day investigations which demand considerable sophistication. This decision is likely to open a treasure trove of options for accused persons, especially those implicated in white collar matters, to point out technical lapses in investigations and seek reliefs on these technical counts. On the other hand, the HC has also made the job easier for investigators to follow a set pattern, which if implemented correctly, can lead to less scope for assailing an investigation. It remains to be seen as to how quickly and to what extent these Guidelines are followed in other States where Rules regarding search and seizure of electronic equipments are silent on the subject. In addition to these aspects, the HC's ruling around the Password Order and the Polygraph Order also clarifies the procedure through which passwords can be obtained and reiterates the primacy of following principles of natural justice.

Footnotes

1. Virendra Khanna v State of Karnataka & Anr, Order dated 12 March 2021 in WP 11759/ 2020

2. Selvi v. State of Karnataka, 2010 (7) SCC 263

3. Justice KS Puttuswamy (Retd) v Union of India, 2017 (10) SCC 1

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