Prosecution Has Right To Ask Accused To Surrender Mobile Phone; No Violation Of Article 20(3) : Kerala High Court

The Kerala High Court on Saturday held that the prosecution has every right to seek that the accused should surrender mobile phones for forensic examination under Section 79A of the Information Technology Act. The Court rejected the argument that the surrender of mobile phones will infringe the fundamental right against self-incrimination under Article 20(3) of the Constitution of India.  

Accordingly, it directed actor Dileep and other accused to hand over six mobile phones to its Registrar General in a sealed box by 10.15 am on Monday in the alleged criminal conspiracy to kill police officers investigating the sensational 2017 sexual assault case.

After referring to a couple of landmark decisions in this area, Justice Gopinath P. ruled:

"Bound, as I am, by the law...I hold that the prosecution has every right to seek that the accused hand over the mobile phones in question for the purpose of forensic examination by an agency identified by the Central Government as 'Examiner of Electronic Evidence' under Section 79-A of the Information Technology Act, 2000."

Senior Advocate B. Raman Pillai appearing for the accused in the matter suggested that any direction to produce the mobile phones would amount to the violation of the right against self-incrimination guaranteed under Article 20(3) of the Constitution. 

However, Director General of Prosecutions T.A Shaji appearing for the prosecution vehemently argued that there is no question of violation of Article 20(3) as the direction to produce a document or a thing does not amount to self-incrimination.

He added that the investigating agency has every power to demand the production of mobile phones in question as the data contained in the same has to be verified for the purpose of investigation. It was further submitted that the Karnataka High Court had recently considered this issue in Virendra Khanna v. State of Karnataka & Ors.  

After carefully perusing the arguments and advanced and the law laid down on this subject, the Court took the view that the issue raised was no longer res integra. 

To confirm this stand, the Court referred to an 11-judge bench decision of the Supreme Court State of Bombay v. Kathi Kalu Oghad [AIR 1962 SC 1809] where it was held that giving thumb impressions or impressions of foot/palm/fingers or specimen writings or showing parts of the body by way of identification does not violate Article 20(3). 

The Judge noted that this decision was relied on heavily by other landmark judgments such as K.S. Puttaswamy v. Union of India (which held the right to privacy as a fundamental right) and Ritesh Sinha v. State of U.P. (which held that Magistrate can direct accused to give voice samples without his consent).

The Court also observed that in Virendra Khanna (supra), the Karnataka High Court had held so: 

"Mere providing of an access of to smartphone or e-mail account would not amount to being a witness, the information that is accessed by the Investigating officer on the smartphone and or the e-mail account being only access; to the data and/or documents, it is for the Investigating officer to prove and establish the same in a Court of law by following the applicable Rules of evidence." 

Finding force in the law laid down by the Supreme Court in Oghad (supra) and the Karnataka High Court in Virendra Khanna (supra), the Single Bench held that the prosecution was empowered to seek that the accused to hand over their mobile phones for the purpose of forensic examination.

The Court issued the order in the anticipatory bail plea moved by Dileep and others in the alleged criminal conspiracy to kill police officers investigating the sensational 2017 sexual assault case.

Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 45

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