ORDER :

The petitioner in this case, is the investigation agency in RC No.08(S)/2007/SCB/CBI/Chennai (Crime No.783/2002 of Perumbavoor Police Station, and now pending before the Court of III Additional Sessions Judge/Special Judge(SPE/CBI)-I, Ernakulam as S.C No.725/2015. The challenge, in this case, is against the Annexure 5 order passed by the learned Sessions Judge by which, an application submitted by the petitioner under section 91 of the Cr.P.C to summon the Nodal Officers of some telecom companies to produce the certificate under section 65B of the Evidence Act, in respect of certain Call Data Records (CDR) of the mobile phones of some of the accused, was dismissed.

2. The facts which led to the filing of the Crl.M.C are as follows: Crime No.783/2002 was originally registered by the Perumbavoor Police, in connection with the murder of one T.M. Varghese @ Malankara Varghese, on 05/12/2002. Initially, the case was investigated by the local police, and later the same was handed over to the CBCID. However, the mother of the deceased approached this Court by filing WP(C)No.4271/2006 seeking transfer of investigation to CBI, which was allowed, and on the basis of the direction issued by this Court, the case was re-registered by the CBI as RC No.08(S)/2007/SCB/CBI/Chennai on 05/11/2007. Though a final report was filed by the CBI on 05/05/2010, the Chief Judicial Magistrate, Ernakulam directed a further investigation into the matter. Accordingly, a further investigation was conducted under section 173(8) of the Cr.P.C and a supplementary final report was submitted on 8/11/2022.

3. Earlier, during the investigation by the State Police, the Inspector of Police, Perumbavoor, obtained the CDRs of the mobile phones of some of the accused persons from the Telecom companies concerned. However, the police did not verify the same and did not take steps to obtain a certificate under section 65B of the Evidence Act. Later, when the investigation was transferred to the CBCID, the officers concerned did not take any steps in this regard. When the CBI took over the investigation in the year 2007, they verified the call data and found that the 10th accused made calls on the accused nos 2, 3, 4 and 7 and witnesses Joy and Joji Mathew on 3/12/2002, 4/12/2002 and 5/12/2002. Even though the then investigation officer of the CBI requested the telecom companies to provide the CDRs with the certification under the section 65B of the Evidence Act, he was informed that, as the CDR was retained only for a period of two years, they are unable to provide the same. Thereafter the trial of the case commenced on 26.11.2021, and the prosecution submitted an application under section 91 of Cr.P.C for the production of certified CDRs from the companies concerned, and thereupon they replied that the CDRs required were not retained by them. Thereafter, the prosecution submitted Crl.MP 576/2022 for directing CW47 and CW49, the Nodal officers of BPL Mobile Cellular Ltd and Escotel Mobile Communications Ltd, respectively, who had retrieved the data from he computer system. In the meanwhile, upon getting summons CWs 47 and 49 appeared before the court. CW 47 brought a certification under section 65B and was placed before the court. As the defence objected to the marking of the same, the same was not considered. CW49 stated that he cannot issue the certificate based on his memory alone.

4. Accused persons opposed the said application. The objections inter alia were that (1) by filing such an application at the fag end of the trial, the prosecution is filling up the lacunae in the case, (2) since the original CDR is no longer available, the question of certifying the same without verifying the original data is not permissible, (3) such permission for certification, after almost twenty years of retrieving the data would cause prejudice to the accused, particularly because, they would be deprived of the opportunity to get the said data verified through an expert under secti