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Synopsis

The Delhi High Court has recently emphasized that an accused cannot be coerced to reveal or disclose the password(s) of their electronic devices and online accounts when trial is ongoing.

Citing protection under Article 20(3) of the Constitution of India, which guarantees the right against self-incrimination, the bench of Justice Saurabh Banerjee made this observation while granting bail to an accused in a case involving allegations that E-Sampark Softech and its directors orchestrated a $20 million scam by placing fraudulent calls to US citizens from call centers based in India.

The Central Bureau of Investigation (CBI) had opposed the bail plea, contending that the accused, a director of the company, was a key figure in the scam and had refused to provide passwords for his devices, email, and crypto wallet accounts.

The single-judge bench highlighted that the case primarily revolved around electronic evidence seized by the investigating agency, including laptops, mobile phones, and sophisticated gadgets, emphasizing their secure status. It acknowledged the expectation for the accused to cooperate in the investigation but stressed that constitutional protections cannot be compromised.

The court stated, "Investigating agencies cannot expect anyone to sing in a tune which is music to their ears when they are protected under Article 20(3) of the Constitution." It further noted that, as the trial was ongoing, the accused could not be coerced into revealing passwords or similar details due to the constitutional protection provided.

According to the CBI, the call center employees impersonated US government officials, coercing US residents with threats of arrest, criminal cases, penalties, fines, or property seizures to extort money through various means.

Counsel for the accused argued that the accused's father and brother, also co-accused, had been charge sheeted without arrest. Additionally, out of the 12 accused, the applicant was the only one arrested, and the investigation against him was complete.

On examining the circumstances, the court noted that the alleged victims resided abroad, making it unlikely for the accused to influence witnesses. It also observed no evidence of the accused misusing interim bail during the preceding 203 days.

Considering these factors, the court stated that the accused was not a flight risk. It said that, despite being named in the First Information Report, the accused's status remained that of a suspect until the case's final outcome.

Emphasizing the presumption of innocence until proven guilty, the court ruled that continued detention would violate Article 21 of the Constitution of India and ordered the release of the accused under certain conditions.

Case Title: Sanket Bhadresh Modi v. Central Bureau of Investigation & Anr.