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2025 Supreme(Del) 472

IN THE HIGH COURT OF DELHI AT NEW DELHI
ANUP JAIRAM BHAMBHANI
Sohail Malik – Appellant
Versus
State NCT Of Delhi – Respondent


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

Judgement Key Points

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

  1. 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 (!) (!) (!) .

  2. 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 (!) (!) (!) .

  3. 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 (!) (!) (!) (!) .

  4. 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 (!) (!) (!) .

  5. 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 (!) (!) .

  6. 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 (!) (!) .

  7. 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 (!) .

  8. 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 (!) (!) .

  9. 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 (!) .

  10. 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 :

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.

2. Briefly, the petitioner (hereinafter “accused”) is facing allegations of stalking

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