Accused Can't Be Coerced To Reveal Passwords Of Digital Devices While Trial Is Ongoing: Delhi High Court Grants Bail

The Delhi High Court has recently observed that an accused cannot be coerced to reveal or disclose the passwords or any other similar details of the digital devices or gadgets seized during investigation while the trial is ongoing, in view of the protection guaranteed under Article 20(3) of the Constitution of India.

Justice Saurabh Banerjee said that the investigating agency cannot expect an accused to "sing in a tune which is music to their ears", more so when such an accused enjoys the Constitutional protection against self-incrimination.

The court made the observation while granting bail to one Sanket Bhadresh Modi, Director of a company accused of making millions of scam phone calls to USA from fraud call centres located in India and defrauding US Citizens to the tune of Rs. 20 million USD.

Although the court observed that any accused, like Modi, is expected to show high sensitivity, diligence and understanding during such an investigation, it added:

“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.”

The Central Bureau of Investigation (CBI) had registered an FIR under Sections 120B, 170, 384, 420 and 503 of the Indian Penal Code, 1860 and under Sections 66C, 66D, 75 and 85 of the Information Technology Act, 2000.

At least 12 persons were named as an accused in the FIR. Modi was in custody since July 19, 2023, and the chargesheet was filed on September 16, 2023.

The agency submitted that it was awaiting for Modi to share the passwords to unlock the gadgets or digital devices seized during investigation and claimed that he was not co-operating regarding the same.

The court observed that as the trial in the case was ongoing, Modi cannot be coerced to reveal or disclose the password(s) or any other like details in view of the protection guaranteed to him under the Constitution of India.

Justice Banerjee further said that since the complainants and those allegedly cheated or defrauded were overseas and were far beyond the reach of the accused, there were miniscule chances of him influencing the witnesses.

“Furthermore, it is not the case of the CBI that while the applicant was out on interim bail for the period of 203 days, he has misused the liberty or has actually (tried to) indulge in any such kind of activities. In view thereof, this Court does not find the applicant to be a flight risk or a case wherein he would shun away from participating in the investigation, as and when called for,” the court said.

It added that though Modi was named in the FIR as an accused, however, till the final outcome of the proceedings, his status was merely that of a suspect and is innocent till proven guilty.

“In view thereof, keeping the applicant behind bars will lead to violation of Article 21 of The Constitution of India,” the court said.

Counsel for Applicant: Mr. Dayan Krishnan, Sr. Advocate with Mr. Jay Kumar Bhardwaj, Ms. Surabhi Mahajan and Mr. Shreedhar Kale, Advocates

Counsel for Respondent: Mr. Anupam S. Sharma, SPP alongwith Mr. Prakash Airan, Ms. Harpreet Kalsi, Mr. Ripudaman Sharma, Mr. Abhishek Batra, Mr. Syamantak Modgill and Mr. Kashitiz Rao, Advocates

Title: Sanket Bhadresh Modi v. Central Bureau Of Investigation & Ors.

Citation: 2024 LiveLaw (Del) 5