Kerala High Court: Prosecution Ordering Surrender of phone does not Infringe Article 20(3)

kerela high court law insider

Ambika bhardwaj

Published On: January 30, 2022 at 13:16 IST

On Saturday, the Kerala High Court in the Case of P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr. ruled that the Prosecution has Right to ask the Accused to handover their mobile phones for Forensic Examination under Section 79A of the Information Technology Act.

The Court dismissed the Argument that surrendering mobile phones would Violate the Fundamental Right against Self-Incrimination guaranteed by Article 20(3) of the Indian Constitution.

As a result, it Ordered Actor Dileep and the other Accused to hand over six mobile phones in a sealed box to the Registrar General by 10.15 a.m. on Monday in the Alleged Criminal Conspiracy to kill police officers trying to Investigate the 2017 Sexual Assault Case.

Senior Advocate B. Raman Pillai, who represented the Accused in the Case, recommended that any Order to Surrender the mobile phones would Violate the Right Against Self-Incrimination given by Article 20(3) of the Constitution.

On the other hand, Director General of Prosecutions, T.A Shaji, who represented the Prosecution contended that there is no Infringement of Article 20(3) because the Order to produce a document or a thing does not amount to Self-Incrimination.

The Court determined that the matter is no longer Res Integra.

The Court noted that in Virendra Khanna Case, the Karnataka High Court held that-

“Merely giving access to a smartphone or an e-mail account would not amount to being a Witness, the data accessed by the Investigating Officer on the smartphone or the e-mail account is the only access to the information and documents. It is on the Investigating Officer to show and assert the same in a Court of Law by pursuing the relevant Rules of Evidence.”

The Single Bench Ruled that the Prosecution had the Authority to ask the Accused to Surrender their mobile phones for Forensic Examination.

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