In light of the constitutional protection against self-incrimination provided by Article 20(3) of the Indian Constitution, the Delhi High Court recently noted that an accused person cannot be forced to reveal or disclose the passwords or any other similar details of the digital devices or gadgets seized during investigation while the trial is still ongoing. On December 18, 2023, the bench of Justice Saurabh Banerjee held that investigative agencies cannot expect an accused person to “sing in a tune which is music to their ears,” especially if the accused person is protected from self-incrimination by the Constitution.
The court made the said observation while granting bail to Sanket Bhadresh Modi, the director of a business that is accused of scamming US citizens out of $20 million by placing millions of fraudulent phone calls to the USA from fraud call centres in India. Even as the bench acknowledged that Modi and all other accused parties are expected to exhibit a high level of sensitivity, thoroughness, and understanding throughout this kind of probe, the court also emphasised on the constitutional safeguards provided to the accused.
As per a report in the LiveLaw, the bench stated “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.”
Brief about the case:
The Central Bureau of Investigation (CBI) had registered an FIR wherein it was alleged that a company, called E-Sampark Softech Pvt. Ltd, along with its directors, had made millions of scam phone calls to the US from fraud call centres located in India and had defrauded and cheated US citizens to the tune of about 20 million USD. The accused had been booked 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 against the accused. As per the LiveLaw report, at least 12 persons were named as an accused in the FIR. Notably, Modi was in custody since July 19, 2023, and the charge sheet was filed on September 16, 2023.
Observations of the court:
The CBI had opposed the bail plea stating that the man is the “real kingpin behind the entire racket” since he is the director of the company alleged to be involved in the FIR. On the contention raised by the investigative agency that Modi was not being cooperative with the investigation as the agency was still awaiting for Modi to provide the passwords needed to open the gadgets or digital devices that were taken during the probe, the Court noted that the Indian Constitution guarantees Modi protection from doing so. As per the report, it was held by the bench that since 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.
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. The court also observed that the CBI had not said that while the man was out on interim bail for 203 days, he had misused his liberty; it further said it 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.
“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, as per the LiveLaw report.
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 of this, the court held that the accused cannot be coerced to self-incriminate and can also not be kept behind bars.
“Lastly and most specifically, 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,” a report of the Indian Express stated.
The HC further observed that the case primarily revolves around electronic evidence on laptops, mobile phones and other sophisticated gadgets which have already been seized by the CBI. Thus, if granted bail, there are hardly any chances of the man tampering with the devices, the court said.
As per the report of IE, Justice Banerjee further observed that the complainants who have been allegedly cheated or defrauded are overseas and are far beyond the reach of the man, and so there are “miniscule chances of the applicant influencing the witnesses”.
“In view thereof, keeping the applicant behind bars will lead to violation of Article 21 of the Constitution of India,” Justice Banerjee underscored, as per the LiveLaw report.
The HC thereafter granted the man bail on him furnishing a personal bond of Rs. 2 lakh along with one surety of the like amount by a family member/ friend having no criminal case pending against them, subject to certain conditions.
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