Can an investigating officer ask for mobile or email password during an investigation?

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Can an investigating officer ask for mobile or email password during an investigation?

 

  1. Article 20(3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself.

 

  1. A Special Central Bureau of Investigation (CBI) Court in Delhi recently held that “an accused cannot be compelled to provide the password of his electronic device to the investigating agency in view of the protection guaranteed by Article 20(3) of the Constitution” [in CBI v. Mahesh Kumar Sharma & Ors dated 29.10.2022, CBI- 31/2021)

 

  1. However, as per the above judgement, the IO is within his right to access the data of the computer system and its softwares which were seized from the accused with the help of specialized agency or person.

 

  1. In Selvi v. State of Karnataka, (2010) 7 SCC 263, the Supreme Court held that, “the right against self-incrimination is a vital safeguard against torture and other third-degree methods that could be used to elicit information.”

 

  1. Article 14(3) (g) of the International Covenant on Civil and Political Rights (ICCPR) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt.

 

  1. In Nandini Satpathy case [(1978) 2 SCC 424 : 1978 SCC (Cri) 236], Justice VR Krishna Iyer held, “Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme”

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