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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
HARPREET SINGH BRAR, J.
Paramjit Kaur – Appellant
Versus
State of Haryana - Respondent
CRR No.2605 of 2023 (O&M)
Decided on : 04-12-2023
Section 91 Cr.P.C. - Preservation of Call Details Records - NDPS Act - Indian Evidence Act - [Section 91 Cr.P.C., NDPS Act, Indian Evidence Act] - The court discussed the necessity and desirability of preserving call detail records and tower location at the behest of the accused under the NDPS Act. It emphasized the admissibility of electronic records in criminal trials and the accused's right to summon relevant evidence for their defense. The judgment highlighted the legislative intent behind Section 91 Cr.P.C. to ensure discovery of crucial material during investigation, trial, or other proceedings, and the importance of securing documentary evidence to prevent miscarriage of justice. The court balanced the right to privacy of police officials with the accused's right to a fair trial, emphasizing the need for the accused to prove the necessity and desirability of such evidence before its production.
Fact of the Case:
The petitioner challenged the dismissal of their application under Section 91 Cr.P.C. for preserving call details records with location chart of specific phone numbers, crucial for proving the innocence of the petitioner's husband in a NDPS Act case.
Finding of the Court:
The court set aside the impugned order and directed the trial Court to pass necessary directions for preserving and producing the call details/tower location details of the mentioned phone numbers, emphasizing the accused's right to relevant evidence for their defense.
Issues: The key issues revolved around the admissibility and preservation of electronic records, balancing the right to privacy of police officials with the accused's right to a fair trial, and the necessity and desirability of call detail records and tower location for proving the innocence of the accused.
Ratio Decidendi: The judgment emphasized the admissibility of electronic records in criminal trials, the legislative intent behind Section 91 Cr.P.C. to ensure discovery of crucial material, and the accused's right to relevant evidence for their defense while balancing the right to privacy of police officials.
Final Decision: The impugned order was set aside, and the trial Court was directed to pass necessary directions for preserving and producing the call details/tower location details of the mentioned phone numbers.
Case Citation and Court Details:
2023 Supreme (P&H) 1323; 2024 1 CriCC 260; 2023 4 LawHerald 3206. High Court of Punjab and Haryana at Chandigarh, HARPREET SINGH BRAR, J. Paramjit Kaur v. State of Haryana, CRR No.2605 of 2023 (O&M), decided on 04-12-2023. (!) (!)
Subject Matter:
Criminal Law - Evidence and Procedure, focusing on Section 91 Cr.P.C. for preservation of call detail records (CDRs) and tower locations in NDPS Act case under Section 21; admissibility of electronic records under Evidence Act Sections 65A, 65B; balancing police privacy with accused's fair trial rights under Article 21. [judgement_subject][judgement_act_referred]
Facts of the Case:
Petitioner's husband (Satnam Singh @ Sattu) allegedly planted with 4.85g heroin, arrested on 03.12.2021; prior complaint against police on 12.09.2020 led to grudge. Claimed lifted from village Peerawali house at 10 AM in presence of villagers, but recovery shown elsewhere. Application under Section 91 Cr.P.C. for CDRs/tower locations of specific police phone numbers dismissed by trial court on 11.09.2023. [23000828480001][23000828480012]
Petitioner's Arguments:
CDRs/tower locations vital to disprove arrest time/place by prosecution witnesses; electronic records admissible under Evidence Act Sections 65A, 65B; trial court rejected mechanically without reasons; denial prejudices defense and innocence proof. [23000828480001][23000828480012]
State's Arguments:
Revealing CDRs/tower locations exposes secret informers, endangers witnesses; not for routine public access; trial court rightly rejected. [23000828480002]
Trial Court's Reasoning (Impugned Order):
Petitioner failed to mention purpose, necessity, relevancy of CDRs/tower locations. [23000828480003]
High Court's Analysis on Application:
Petitioner's application (Annexure P-1) specified necessity: husband lifted from home at 10 AM, witnesses absent from alleged recovery site; CDRs essential to contradict prosecution. [23000828480004]
Legal Framework - Section 91 Cr.P.C.:
Court/officer may summon documents/things necessary/desirable for investigation/inquiry/trial; does not override Evidence Act Sections 123, 124 or Bankers Books Evidence Act; excludes postal/telegraph items. Purpose: prevent loss/destruction of crucial evidence, ensure discovery of truth. [23000828480006] (!) (!) (!) (!) (!)
Admissibility of Electronic Records:
Electronic records (CDRs/tower data) admissible in criminal trials under Evidence Act Sections 65A, 65B, subject to Section 65B(4) certificate; accused entitled to summon relevant records for defense, e.g., officer locations during arrest. [23000828480005][23000828480007][23000828480012]
Balancing Rights:
Accused's Article 21 fair trial right (free/fair investigation/trial, natural justice, effective hearing) prevails over police privacy; limited breach permissible for truth-discovery/justice; but accused must first prove necessity/desirability/relevancy to guilt/innocence. Section 91 aids informed judicial decisions, prevents miscarriage via evidence preservation. [23000828480007][23000828480008][23000828480009]
Necessity of Preservation:
CDRs/tower data must be preserved under Section 91 Cr.P.C. at accused's request, else lost forever; recognized right for defense documents. [23000828480005][23000828480007]
Court's Finding and Directions:
Impugned order set aside; trial court to issue directions under Section 91 Cr.P.C. for preserving/producing CDRs/tower details of specified phone numbers (Annexure A-1); no merits adjudication. Petition disposed. [23000828480010][23000828480011] (!)
Ratio/Principles:
Accused's right to summon/produce relevant electronic evidence (CDRs/tower) for defense upheld; legislative intent of Section 91 Cr.P.C. ensures no crucial material undiscovered; privacy balanced against fair trial; prove necessity first to avoid ipse dixit orders. Denial of best evidence = miscarriage of justice. [23000828480007][23000828480008][23000828480009]
Advocates:
Appellant: Mr. Amit Choudhary; Respondent: Ms. Geeta Sharma. [judgement_act_referred]
JUDGMENT :
HARPREET SINGH BRAR, J.
1. The petitioner is challenging the impugned order dated 11.09.2023 passed by the learned Additional Sessions Judge, Hisar whereby the application filed by the petitioner under Section 91 Cr.P.C. for preserving the calls details records with location chart of Mobile No.8708196220 (SI Satbir Singh, 51/H), 99914-39813 (ESI Raghubir Singh), 8814016312 (L/C Asha), 88140-11305 (DSP Ashok), 8708787725 (SI Phool Singh), 104/HSR, 8814011308 (Inspector Mandeep), 9466478128 (ASI Rajesh Kumar), 9466092628 (HC Ranvir Singh), 8901158402 (L/CT Kamlesh) was dismissed.
2. Learned counsel appearing for the petitioner inter alia contends that the husband of the petitioner namely Satnam Singh @ Sattu had made a complaint against the police officials on 12.09.2020 and on account of his complaint, police started nurturing a grudge against the husband of the petitioner. The husband of the petitioner was arrested and 4 grams 85 miligrams of heroin was planted on him and FIR No.1090 dated 03.12.2021 under Section 21 of the NDPS Act was registered at Police Station Sadar, Hisar.
2. Learned counsel for the petitioner has taken a categoric stand that her husband was lifted from her house in village Peerawali on 03.12.2021 at 10 AM in the presence of co-villagers and the recovery of the alleged contraband was shown at a different location. The petitioner had moved an application under Section 91 Cr.P.C. before the learned trial Court for issuance of necessary direction to preserve the call details and tower location details of the police officials at the relevant point of time. The call details and the tower locations are extremely vital for proving that husband of the petitioner was not arrested at the time and place alleged by the investigating agency. Any denial of these details would seriously prejudice the case of husband of the petitioner to prove his innocence. Moreover, the electronic record is admissible in terms of Sections 65-A and 65-B of the Indian Evidence Act. The learned trial Court has not considered the issue in right earnest rather rejected the application filed by the petitioner in a mechanical manner without assigning any reason.
3. Per contra, learned State Counsel contends that production of the call details and the tower location of the police officials would expose the secret informers, who help the investigating agency in intercepting the anti-social elements and these details cannot be made available for public in routine matter. It would put the witnesses in danger also and the learned trial Court has rightly rejected the application filed by the petitioner on cogent grounds.
4. Having heard learned counsel for the parties and after a perusal of the record, it transpires that the learned trial Court has dismissed the application filed by the petitioner under Section 91 Cr.P.C. on the ground that the petitioner has not mentioned the purpose of collecting such call details and tower locations and without disclosing the necessity and relevancy of such evidence, the application filed by her cannot be allowed.
5. A perusal of the application filed by the petitioner (Annexure P-1) indicates that the accused has taken a specific ground that husband of the petitioner namely Satnam Singh @ Sattu was taken by the police from their house in Village Peerawali on 03.12.2021 at 10 AM in the presence of the co-villagers and the necessity and relevancy of the call details and the tower locations was duly indicated by pleading that the prosecution witnesses were not present at the place and time of alleged recovery. As such, summoning of call details records of witnesses mentioned at Annexure A-1 is essential.
6. A two Judge Bench of the Hon’ble Supreme Court in Suresh Kumar Vs. Union of India 2015 (3) RCR (Criminal) 340 has considered the necessity and desirability of preserving the call detail records and tower location at the behest of the accused under the NDPS Act and speaking through Justice T.S. Thakur has he
The accused's right to summon relevant evidence for their defense, including electronic records, is recognized, and the legislative intent behind Section 91 Cr.P.C. is to ensure discovery of crucial ....
The admissibility of electronic records in criminal trials and the need to balance the right to summon relevant electronic records with the right to privacy of others.
The right to a fair trial under Article 21 of the Constitution prevails over privacy concerns, necessitating the production of evidence under Section 91 Cr.P.C. for justice.
The court established that electronic records, including mobile tower locations, are admissible as evidence and essential for a fair trial.
The necessity to preserve electronic evidence for establishing innocence can outweigh privacy concerns of investigative officials.
The court affirmed the necessity of preserving electronic records to ensure a fair trial, balancing privacy rights against the accused's right to access evidence.
The accused has the right to access call detail record and tower location record to build up their defense from the early stages of the trial, as established in the precedent set by the Hon'ble Delhi....
The accused has the right to access relevant documents to build up their defense from the beginning of the trial.
The court ruled that requests for evidence must be substantiated and not based on mere assumptions, emphasizing the importance of privacy for police officials.
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