The court ruled that telecom operators must maintain call records for two years, allowing the accused to access evidence through the court under Section 91 Cr.P.C.

ORDER :

Mr. Kuldeep Mathur, J. - By way of filing the present criminal misc. petition under Section 482 Cr.P.C., the petitioners have prayed for the following relief:

"It is, therefore, prayed that this criminal misc. Petition may kindly be allowed and the order dated 01.11.2023, passed by Learned Special Judge (NDPS Cases) Hanumangarh, may kindly be quashed and set aside and the CDR/call location of the Mobile be given to the petitioner and may kindly be directed to allow the application filed under Section 91 Cr.P.C."

2. Briefly stated the facts of the case are that the petitioner is facing trial under Section 8/21, 25 of the NDPS Act, 1985.

3. Learned counsel for the petitioner submitted that the petitioner had moved an application under Section 91 Cr.P.C. dated 17.5.2023 before the competent criminal court and prayed that the call details and location of SHO - Bhajan Lal, Sarjeet Singh, Shailendra Kumar, Mahmood Ali, Vishnu Dutt, Prem Kumar and Vinod Kumar Chhipa for 11.8.2022 from 3 PM to 2 AM alongwith CCTV footages of PS Goluwala dated 11.8.2022 for 3 PM to 6 PM be summoned.

4. The competent criminal court vide order dated 1.11.2023 rejected the petitioner's application holding inter-alia that the record of CDR/IPDR is not maintained beyond a period of 15 months, therefore, the call details and CCTV footages cannot be summoned.

5. Drawing attention of the Court towards order No.20-271/2010 AS-1 (Volume-III) dated 21.12.2021 issued by Govt. of India, Ministry of Communications, Department of Telecommunications, New Delhi, learned counsel submitted that the record of the call details and call locations are maintained by the telephone companies/licensee for a minimum period of two years. It was urged that procuring the call details and call locations of the above referred police personnel is necessary in the present case as the petitioner has been falsely implicated in the present case.

6. Learned counsel for the petitioner relied upon the judgments rendered by coordinate Benches of this Court in the cases of Swarn Singh @ Baba v. State of Rajasthan (CRLMP 273/2020) and Pawan Sharma v. State of Rajasthan (CRLMP 4128/2022).

7. Per contra, learned Public Prosecutor has vehemently opposed the prayer made by the petitioner and submitted that the accused cannot get the evidence in support of his case, collected through or with the help of the competent criminal court by way of filing an application under Section 91 of Cr.P.C. He thus implored the Court to reject the misc. petition.

8. Heard learned counsel for the parties at the Bar and perused the material available on record.

9. Having considered the rival arguments advanced at the Bar and having perused the order No.20-271/2010 AS-1 (Volume-III) dated 21.12.2021 issued by Govt. of India, Ministry of Communications, Department of Telecommunications, New Delhi, this Court finds that the telecom operators/licensees are required to maintain the record of the call details and call locations for a period of two years. Thus, the reason assigned by the learned competent criminal court for rejection of the petitioner's application under Section 91 Cr.P.C. is not justified and is not in consonance with the circular/order issued by Govt. of India in this regard. Even otherwise, in the opinion of this Court, the competent criminal court ought to have allowed the application preferred by the petitioner under Section 91 Cr.P.C. because if the petitioner wanted to procure the call details and call locations of the police personnel, he could not have obtained the same directly from telephone/mobile companies.

10. In view of the aforesaid discussion and following the precedent law, the present criminal misc. petition is allowed. The impugned order dated 1.11.2023 is hereby quashed and the petitioner's application preferred under Section 91 Cr.P.C. stands allowed.

11. The competent criminal court is directed to issue requisite notice to the concerned mobile companies to send call details and call locati