Probe officers can face action if private data is leaked: Karnataka High Court

The High Court of Karnataka has declared that action for dereliction of duty or other proceedings can be initiated against investigation officers (IOs) if they are found to have furnished to any third party, data retrieved from electronic gadgets that could impinge on privacy of any person connected to the probe in criminal cases.

The court also declared that it is the responsibility of the officers to safeguard the information or data retrieved from electronic gadgets such as smartphones, computers, laptops and storage units, including cloud-based storage, email accounts, etc.

“The disclosure, making public or otherwise in court proceedings, would have to be determined by the judge of the court concerned by passing a judicial order. In no case could such details or data be provided by the investigation officer to any third party during the course of investigation without the written permission from the court concerned,” it held.

Justice Suraj Govindaraj made these observations in his March 12 verdict while setting aside a trial court’s order directing Virendra Khanna, a party organiser and an accused in 2018 drug case, to undergo polygraph test and to provide passwords of his gadgets and e-mails to the police.

The court said investigating officers were to be held responsible to safeguard privacy as the retrieved data may contain several private information that may or may not be needed for the probe, and as there could not be strict compartmentalisation of data stored as personal or not personal in those gadgets.

The court, however, said that use of data retrieved from electronic gadgets protected by passwords would not amount to violation of right to privacy of a person in criminal case as access to such data by the police would come within the exceptions carved out by the Supreme Court in Justice Puttaswamy’s case on right to privacy.

On what the investigating agency could do if accused persons refused to disclose passwords to access gadgets and information, the court said the investigating agency would be at liberty to engage a specialised agency to hack the passwords, pass code or biometric, and the accused could not contest the methodology used by the investigating agency to access information in the gadgets or emails.

Also, the court said that the investigating agency was at liberty to block access to email accounts and gadgets by changing the passwords to ensure no one else apart from designated officers would have access to them.

When manufacturers of gadgets or service providers were not facilitating opening of gadgets and email accounts, the court on an application filed by the investigating agency could permit hacking into the gadgets and email accounts.

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