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.

JUDGMENT :

HARKESH MANUJA, J.

1. By way of present revision petition, prayer has been made for setting aside the order dated 11.11.2020 passed by the Court of Additional Sessions Judge, Hisar, whereby an application filed at the instance of petitioner-accused for summoning/preserving call record/tower record of mobile phones of the investigating officer, besides few other officials as well as of some private individuals, stood dismissed.

2. In the present case, the petitioner was arrayed as an accused in FIR No. 30 dated 25.01.2020, registered under Section 21-B of the Narcotic Drugs and Psychotropic Substances Act, 1985, at Police Station Sadar, Hisar, wherein the final report was presented before the Illaqa Magistrate on 12.05.2020, followed by framing of charges by the Court of Additional Sessions Judge, Hisar, vide order dated 29.10.2021.

3. During the interregnum, the petitioner moved an application before the Trial Court on 16.10.2020 invoking Section 91 Cr.P.C. for summoning/preserving call record/tower record of mobile phones of the investigating officer besides few other police officials as well as certain other private individuals. The prayer made in the said application was vehemently opposed at the instance of prosecution.

4. The Trial Court vide order dated 11.11.2020, declined the prayer made on behalf of the petitioner while recording that the application was vague as no reason/justification was specified for the purpose of preserving the call details/tower location of mobile numbers pertaining to the police officials or the private individuals, besides relying upon the decision made by the Hon’ble Supreme Court in case of Justice K.S. Puttaswamy and Another vs. Union of India, (2017) 10 SCC 1, regarding right to privacy.

5. Impugning the aforesaid order, learned counsel for the petitioner submits that a serious dispute has been raised by the petitioner as regards the place and time of his arrest by the investigating agency, which can only be corroborated from the call details/tower location of the mobile phones of the investigating officer/arresting officer and thus, the same being relevant for the purpose of adjudication of the trial, is required to be preserved.

6. On the other hand, learned State counsel submits that a detailed and reasoned order has been passed by the Trial Court, warranting no interference by this Court. He also points out that relevant details whatsoever were given in the application relating to the date, time and place were not sufficient.

7. I have heard learned counsel for the parties and gone through the paper book.

8. In the present case, a serious dispute has been raised by the petitioner-accused as regards the time and place of arrest by the arresting team/investigating officer, which being part of his defence goes to the root of the matter related to his implication or innocence in the FIR. Though, no doubt relevant details have not been provided in the application filed at the instance of petitioner, however, at the same time, the predicament of the petitioner can also not be ignored that giving detailed reasons may also expose his defence. In view of the categorical stand by the petitioner regarding disputing the time and place of arrest by the police officials, purpose and relevance of seeking call details/ tower location, are obvious for the purpose of disputing the claim of the police officials in this regard by making an effort to establish it by way of electronic evidence.

9. Therefore, learned Session Judge should not have out rightly rejected the application of the petitioner in this regard. However, It cannot also be denied that petitioner in application filed before the Trial Court invoking Section 91 Cr.P.C. has sought records in an unbounded manner and right of petitioner cannot be given a scope which intrudes into the right to privacy of others which has to be given a protection as envisaged in Puttaswamy's case (supra). Accordingly, a balancing exercise is necessitated as at