Preserving electronic evidence is essential for ensuring a fair trial, allowing the accused to challenge the prosecution's case effectively.

ORDER

FARJAND ALI, J.

1. The instant Criminal Misc. Petition has been filed challenging the order dated 30.05.2024 passed by the learned trial Court by which the trial Judge dismissed the Petitioners' application under Sections 91, 311 of the Cr.P.C. and Section 165 of the Indian Evidence Act seeking the summoning of call details and mobile call locations of the concerned Police Officials.

2. Briefly stated the facts of the case are that the petitioners had been apprehended in connection with FIR No.207/2023 for alleged offences under the Arms Act and the NDPS Act, with contraband opium and a desi pistol purportedly was recovered from their vehicles. Following the investigation, the police had filed a chargesheet, and charges had been framed, which were denied by the petitioners. The petitioners contended that a search conducted at their residence and fields had yielded no illegal articles, and they had been taken into custody in a manner that suggested that the recovery had been fabricated by the police. They filed an application for summoning of call details and locations of the police officials involved, but their application under Sections 91, 311 Cr.P.C, and 165 of the Indian Evidence Act had been dismissed by the trial court on 30.05.2024, necessitating the present petition before this Court.

3. Learned counsel for the petitioners contended that the learned trial Court erred in dismissing the application filed by the petitioners under Sections 91 and 311 of the Cr.P.C. and Section 165 of the Indian Evidence Act. It is argued that the Trial Court has passed the order on the basis of conjectures and surmises, overlooking crucial facts and the submissions advanced by the Petitioners. He further contended that the recovery of contraband was fabricated, with the police unlawfully detaining them and subsequently planting incriminating evidence. They assert that the call details and mobile call locations of the concerned police officials are crucial to establishing the fabricated nature of the prosecution’s case and are essential for a just and equitable adjudication of their innocence. It is stated that the Petitioners have right to a fair trial and the importance of considering all available evidence to ensure a just outcome, particularly in a case where their liberty is at stake.

4. Heard the learned counsel for the parties and perused the material available on record.

5. This Court has made an elaborate discussion with regard to the controversy involved in the case of Chotha Ram & Anr. Vs. State of Rajasthan passed in SBCRLMP No.3672/2023 decided on 04.03.2023. The relevant paragraphs are being reproduced hereunder:-

“11. This Court feels that if for the purpose of reserving and saving the right of the accused and for the sake of justice, if a prayer is made to summon the electronic evidence so as to elicit the truth behind the story, then such prayer ought not to have been declined. When the assertion is made that what is wrong may be proved to be wrong and vice-versa in the end so that the oil and truth must come out, then the defence must be given an opportunity because not giving an opportunity would mean denying them to counter the charges or to defend themselves as well as closing the door of justice for truth to enter in.

12. It is true that after commencement of the trial, the opportunity is being given to the prosecution to lead or adduce evidence in support of charges, whereafter an explanation under Section 313 of Cr.P.C. will be sought from the accused and then the stage of entering into defence under Section 233 of Cr.P.C. would come. It is also true that until the stage of taking the evidence of the defence on record comes, the defence evidence is not required to be taken on record and for that purpose no defence material would be summoned but here is not the question of taking or tendering the defence evidence or relying upon that rather it is observed that, as per the Rules and Regulations of the Telecom Regulatory