Accused can't be coerced to disclose password of gadgets: Delhi HC

Justice Saurabh Banerjee stated that while any accused is expected to show 'high sensitivity, diligence and understanding' during investigation, the investigating agency cannot expect him to 'sing in a tune which is music to their ears' in view of protection under Article 20(3) of the Constitution.

New Delhi: An accused in a criminal case cannot be coerced to disclose the passwords of his or her gadgets and digital devices to the investigating agency, the Delhi High Court has said.

The court's observation came while granting bail to a person accused of running call centres in the country and defrauding US citizens to the tune of about 20 million USD.

Justice Saurabh Banerjee stated that while any accused is expected to show "high sensitivity, diligence and understanding" during investigation, the agency cannot expect him to "sing in a tune which is music to their ears" in view of protection under Article 20(3) of the Constitution.

Article 20(3) states that no person who is accused of any offence shall be compelled to be a witness against himself.

The CBI opposed the bail plea on the ground that the bail applicant is the real kingpin behind the entire racket and that it was waiting for him to share the passwords to unlock the gadgets/ digital devices.

"In the opinion of this court, any accused like the applicant herein, is always very much expected to not only join investigation, but also to participate therein, so as not to cause any hindrance to the ongoing investigation," said the court in a recent order.

"At the same time, the concerned Investigating Agency cannot expect anyone who is an accused, like the applicant herein, to sing in a tune which is music to their ears, more so, whence such an accused, like the applicant herein is well and truly protected under Article 20(3) of The Constitution of India. Also, in the present case, as the trial is ongoing, the applicant cannot be coerced to reveal/ disclose the password(s) or any other like details in view of the aforesaid protection guaranteed to him under The Constitution of India," the court said.

According to the FIR, a company, E-Sampark Softech Pvt. Ltd, along with its directors -- including the present applicant -- made millions of scam phone calls to the USA from fraud call centres located in India and defrauded and cheated US Citizens to the tune of about 20 million USD by impersonating various government officials there.

It was stated that the accused persons would threaten the people there with arrest, initiation of criminal case, penalty, fine or seizure of property and coerced them to pay through various means like wire transfers, bank or cash transfers etc.

The court, while granting bail to the present applicant on a personal bond of Rs 2 lakh and one surety of the like amount, observed that keeping him behind bars would serve no fruitful purpose and he was innocent till proven guilty.

It noted that the investigation qua the applicant was complete, charge sheet stood filed and the proceedings primarily revolved around electronic evidences including laptops, mobile phones and such other sophisticated gadgets, which have already been seized.

It added that there are miniscule chances of the applicant influencing the witnesses and the applicant did not misuse the interim bail of 203 days given to him earlier.

"This court cannot forget that though the applicant has been named in the FIR as an accused, however, till the final outcome of the proceedings emanating therefrom, the status of the applicant is merely that of a suspect. The applicant is innocent till proven guilty possession of the Investigating Agency. In view thereof, keeping the applicant behind bars will lead to violation of Article 21 of the Constitution of India," the court said.