The Court relied upon several Supreme Court judgments before concluding that such information sought to be disclosed by the accused requires application of mental faculty or memory, which is purely based on personal mental effort or knowledge. Therefore, the required information was in the category of “testimonial fact” as explained in the Supreme Court decision in State of Bombay v. Kathi Kalu Oghad.
In that case, the Supreme Court laid down the test to identify whether information or evidence comes within the category of “testimonial fact”.
Eliciting the password of a computer system from an accused for accessing data was, in the Court’s view, not akin to carrying out a comparison or identification. Thus,
“The fact of first category may be based on oral or written statement of an accused but they can still be compelled for the purpose of identification or comparison with facts and materials which are already in the possession of the investigating agency. The Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or “furnish a link in the chain of evidence” needed to do so but not for comparision/identification with other evidence.”
It added,
“In the case of Narco Analysis/Lie Detection Test, the Hon’ble Supreme Court of India has held that such procedure involves personal knowledge of the accused, therefore, this cannot be done without his consent. Same logic applies to an password which is sought in this case as it also involves import of personal knowledge…”
The same will also apply to drawing of a pattern as a security feature on a mobile phone or other electronic device, since the same requires application of mind and personal knowledge, the Court held.
Source: Barandbench
