Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Del) 472

IN THE HIGH COURT OF DELHI AT NEW DELHI
ANUP JAIRAM BHAMBHANI, J.
Sohail Malik - Petitioner
Versus
State NCT Of Delhi & Anr - Respondents
Crl.M.C. 6745/2024 and Crl. M.A. 25774/2024
Decided on : 12-08-2025

Advocates Appeared:
For the Petitioner:Mr. N. Hariharan, Senior Advocate with Mr. Subhash Gulati, Ms. Punya, Mr. Aman Akhtar, Ms. Vasundhara N., Mr. Vinayak Gautam, Ms. Vasundhra Raj Tyagi, Ms. Sima Gulati, Mr. Sharian Mukherji, Ms. Rekha Angara, Ms. Sana Singh, Mr Pankaj Yadav and Ms. Diskha Narula, Advocates.
For the Respondent:Mr. Utkarsh and Mr. Digam Singh Dagar, APPs for the State with Ms. Kumud Nijhawan, Mr. Kunal Bhardwaj, Mr. Paras, Mr. Mohit Rathee and Ms. Garima Saini, Advocates with Insp. Mr. Sunil Kumar, P.S.:Cyber/MDD, Mr. Abhay Kumar, Mr. A.K. Sharma, Mr. ShagumRuhil and Mr. Karan Chopra, Advocates

The preservation of exculpatory evidence is crucial for a fair trial in criminal proceedings.

Headnote:The petitioner impugns the dismissal of an application under section 91 Cr.P.C. seeking preservation of evidence in a stalking case. The Court found that preservation of the requested data was necessary and desirable for ensuring a fair trial, balancing the accused's rights against the complainant's privacy. The court ruled that only the records of the accused should be preserved. The petition is therefore partly allowed, restoring the previous order with modifications.

Judgement Key Points

Certainly. Based on the provided legal document, the key points are as follows:

The court emphasized the importance of preserving exculpatory evidence to ensure a fair trial, especially electronic data such as Call Detail Records (CDRs), CCTV footage, and online platform records (!) (!) (!) .
The petitioner, facing allegations of stalking and sexual harassment, sought preservation of evidence, including CDRs and online activity records, to establish the nature and context of their relationship with the complainant (!) (!) (!) .
The court initially directed the investigation agency to preserve relevant data but later modified this order after considering allegations that the accused had erased some data, and concerns about privacy and relevance were raised (!) (!) (!) (!) .
The court recognized that electronic evidence, such as CDRs, can be crucial for establishing facts about the relationship between parties, including prior conduct and communications, which could be relevant for assessing motives, conduct, and the nature of engagement (!) (!) (!) .
The court highlighted that preservation of such evidence must be based on the criteria of necessity and desirability, and that the evidence sought should be relevant and capable of influencing the trial’s outcome (!) (!) .
It was noted that data such as CDRs are perishable and could be irretrievable if not preserved promptly, especially since service providers may weed out or overwrite such data after certain periods (!) (!) .
The court acknowledged the balance between the accused’s right to a fair trial and the complainant’s right to privacy, proposing measures like in-camera proceedings to protect privacy concerns while preserving exculpatory evidence (!) .
The court clarified that the accused’s primary request was for preservation, not disclosure, and that the relevance or admissibility of the evidence would be determined at a later stage during trial proceedings (!) (!) .
The court permitted the preservation of the accused’s CDRs and other relevant electronic data for the specified period, emphasizing that such preservation is essential for a fair trial and should be carried out with proper certification under relevant evidence law (!) .
Finally, the court disposed of the petition by setting aside some earlier orders and reinstating a prior order with modifications, ensuring that relevant data is preserved and available for the trial process, while safeguarding privacy and procedural requirements (!) (!) .

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Table of Content
1. application of bnss regarding preservation of evidence. (Para 2)
2. submissions regarding necessity and desirability of evidence. (Para 11)
3. court's observations on maintaining a fair trial. (Para 14)

JUDGMENT :

ANUP JAIRAM BHAMBHANI J.

By way of the present petition filed under section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023 ("BNSS‟), the petitioner impugns orders dated 24.04.2024 and 28.05.2024 made by the learned Metropolitan Magistrate, Patiala House Courts, New Delhi, whereby the learned Magistrate has dismissed an application dated 01.04.2024 filed by the petitioner under section 91 of the Code of Criminal Procedure 1973 ("Cr.P.C.‟). Vide application dated 01.04.2024 the petitioner had sought preservation of certain evidence and information as detailed in paras 5(e), (f) and (g) of that application. Furthermore, the petitioner also seeks restoration of order dated 05.04.2024 passed by the learned Magistrate, whereby the Investigating Officer ("I.O.‟) was directed to preserve the electronic data/records/information, including Call Detail Records ("CDRs‟), as referred-to in that application.

BRIEF BACKGROUND

2. Briefly, the petitioner (hereinafter “accused”) is facing allegations of stalking and sexual harassment levelled by respondent No.2 (hereinafter “complainant”) against him vide police complaint dated 16.05.2023, which complaint has culminated in the registration of FIR No. 0053/2023 dated 16.05.2023 under sections 354/354-D/506/509 of the Indian Penal Code, 1860 ("IPC‟) at P.S.: Parliament Street, New Delhi. Subsequently, chargesheet dated 09.03.2024 has been filed in the matter under sections 354/354-D/506/509/201/204 IPC and section 67 of the Information Technology Act, 2000.

3. It is the complainant's case that since the year 2020, the accused had been stalking and making inappropriate advances towards her, despite the complainant having given repeated warnings and a clear indication of her disinterest in the accused from the very outset. On the other hand, it is the case of the accused that over a period of 03 years between 2020 and 2023, the engagement between the parties had gradually grown into an intimate and romantic relationship, which turned sour only when the complainant's husband came to know about their relationship.

4. Upon a preliminary hearing in the matter, vide order dated 29.08.2024, this court had issued notice on the petition and directed the I.O. to forthwith arrange for collection and preservation of records as referred-to in paras 5 (e), (f) and (g) of application dated 01.04.2024; and to continue to hold the data already preserved pursuant to orders passed by the learned Magistrate. By way of the said order it was also clarified, that none of the data and information so collected and preserved shall be disclosed to either of the parties, at that stage.

RECORD OF PROCEEDINGS BEFORE THE SUPREME COURT

5. The above-referred order dated 29.08.2024 was challenged by the complainant before the Supreme Court by way of a Special Leave Petition bearing SLP (Crl.) No. 12411/2024. Vide orders dated 01.10.2024 and 16.10.2024 passed in those proceedings the Supreme Court disposed-of the SLP, leaving it open for this court to hear the matter on merits; and to decide it without being constrained by the observations of the Supreme Court in the said orders. Furthermore, the Supreme Court also left open both the question of fresh collection and preservation of evidence, for this court to decide.

6. For sake of completeness, it ought to be recorded that an IA No. 255035/2024 filed in SLP (Crl.) No. 12411/2024 seeking modification/clarification of order dated 16.10.2024 also stands dismissed by the Supreme Court vide order dated 20.01.2025

7. It must also be recorded, that in any event, in the course of the present proceedings, learned counsel for the accused has submitted that even if no direction is issued for fresh collection, production or disclosure of evidence, the preservation of evide