Action Should Be Taken Against Investigating Officer Who Leaks Private Data Of Accused To Third Parties : Karnataka High Court

In a significant verdict, the Karnataka High Court has held that an investigating officer has no right to disclose the private date seized from the smartphones or electronic gadgets of an accused to a third party, without the written permission of the concerned court.An investigating officer who leaks such private data to third party should be proceeded against for dereliction of duty or delinquency, the High Court added.The Court said that use of such data data retrieved during the course of investigating would not amount to violation of the Right to Privacy, as it is covered under the exceptions given in the KS Puttaswamy judgment(which held right to privacy a fundamental right). However, in no case,such details or data can be provided by the investigating officer to any third party during the course of investigation without the written permission of the court, which is seized off the matter."The responsibility of safeguarding the information or data which could impinge on the privacy of the person will always be that of the investigating officer, if the same is found to have been furnished to any third party the investigation officer would be proceeded against for dereliction of duty or such other delinquency as provided", a single bench of Justice Suraj Govindaraj held. Justice Suraj Govindaraj was hearing a petition filed by Virendra Khanna accused in the infamous sandalwood drug case, who challenged the order passed by the Special NDPS Court dated 14-09-2020 by which it directed the petitioner to cooperate for unlocking his mobile phone seized by the police as illegal and abuse of process of law.Search warrant necessary to search smartphones, laptops, email accounts etcImportantly, the Court held that a search warrant is necessary for the examination of a smartphone, laptop or email account of an accused. 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 the investigation.The Court laid down the procedure for examining smart phones or email accounts :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, biornetrics 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 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, ernail 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 the instant case, the 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.Petitioner's arguments Senior Advocate Hashmath Pasha appearing for the petitioner submitted that insisting the petitioner to unlock his mobile phone which contains his personal information is violative of Right to Privacy as held by the Supreme Court in the case of Justice K S Puttaswamy. Further it was argued that there is no specific law enabling the taking away of his right to privacy or for a direction to be given by any court either to give password of his mobile or to unlock the same and further use of...

Action Should Be Taken Against Investigating Officer Who Leaks Private Data Of Accused To Third Parties : Karnataka High Court

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