Preservation of Perishable Exculpatory Evidence Under S.91 CrPC is the Rule to Ensure Fair Trial Under Article 21: Delhi High Court. - 2025-08-17

Delhi HC Backs Accused's Right to Preserve Digital Evidence in Stalking Case, Citing Fair Trial Principles

New Delhi: In a significant ruling on the intersection of fair trial rights, privacy, and perishable electronic evidence, the Delhi High Court has directed the preservation of call detail records (CDRs) and other digital data sought by an accused in a stalking and sexual harassment case. Justice Anup Jairam Bhambhani, setting aside a Metropolitan Magistrate's order, underscored that the preservation of evidence claimed to be exculpatory must be the rule to ensure a fair trial under Article 21 of the Constitution.

The court restored an earlier magisterial order for preservation, holding that the potential loss of crucial electronic data would be a "travesty of justice" and could prejudice the accused's right to mount a defense.

Background of the Case

The petitioner, Sohail Malik, is accused in an FIR registered in May 2023 for stalking, sexual harassment, and criminal intimidation under various sections of the Indian Penal Code and the IT Act. The complainant alleged that Malik had been stalking her and making inappropriate advances since 2020. Conversely, Malik contended that they were in an intimate, consensual relationship for three years, which soured after the complainant's husband discovered it.

To substantiate his defense, Malik filed an application under Section 91 of the Cr.P.C. before the trial court, seeking the preservation of CDRs and online transaction data from platforms like Zomato, Swiggy, and Amazon for the period between April 2020 and May 2023. He argued this data would prove the intimate nature of their relationship.

Initially, the Magistrate on April 5, 2024, directed the Investigating Officer (IO) to preserve the data. However, this order was subsequently recalled in later orders dated April 24 and May 28, 2024, citing potential infringement on the complainant's privacy and the fact that the accused himself faced a charge of destroying evidence from his own phone.

Arguments Before the High Court

Petitioner's (Accused) Stance: Senior Advocate N. Hariharan, representing Malik, argued that the application only sought preservation , not immediate disclosure, of perishable data. He stressed that this electronic evidence was exculpatory and essential for a fair trial, as it would demonstrate the true nature of the relationship between the parties. It was submitted that in a conflict between the right to privacy and the right to a fair trial, the latter must prevail as it affects public justice.

State and Complainant's Stance: The State and the complainant strongly opposed the plea, arguing that the request failed the test of "necessity and desirability" under Section 91 Cr.P.C. They contended that the data was irrelevant, especially for the period before January 2023, as the relationship "could have gone wrong" from that point. Furthermore, they argued that granting the request would be a breach of the complainant's privacy and that the accused, having allegedly deleted data himself, could not seek such a remedy.

Court’s Reasoning: Fair Trial Over Procedural Hurdles

Justice Bhambhani found merit in the petitioner's arguments, emphasizing the perishable nature of electronic evidence and the need to safeguard an accused's ability to present a defense.

On Necessity and Desirability: The court observed that since the data was bound to be "weeded-out or overwritten," it was undeniably "desirable" to preserve it immediately. On necessity, the court noted:

"It would be a travesty of justice to tell the accused, that we know that the data and information is bound to disappear for-good if it is not preserved at this stage, but since the proceedings are only at the stage of framing of charge, so at this stage, you have no right to ask that the data and information which will disappear subsequently, even be preserved. If evidence, claimed to be exculpatory, is allowed to dissipate in this manner... it could prejudice a fair trial."

On Relevance and Privacy: The court rejected the argument that past conduct was irrelevant, citing the concept of res-gestae under the Indian Evidence Act. It clarified that the relevance and admissibility of the evidence were matters for the trial court to decide at a later stage, not at the stage of preservation.

To balance the competing rights, the court adopted a "calibrated response":

"As a measured approach, this court would direct that insofar as the CDRs are concerned, in order to obviate unnecessary exposure of the complainant’s CDRs, only the CDRs of the accused... shall be preserved, which would be adequate to show the communications, if any, between the parties for that period."

The court also highlighted the systemic lack of formal mechanisms for an accused to collect exculpatory evidence, stating, " it is de rigueur that the preservation of evidence claimed to be exculpatory must be the rule, unless the claim is ex-facie baseless. "

Final Decision and Implications

The High Court set aside the Magistrate's orders dismissing the application and restored the initial direction for preservation, with modifications. It directed: 1. Preservation of the accused's CDRs and other specified online transaction data for the period from April 1, 2020, to May 15, 2023. 2. Any of the complainant's CDRs already collected are to be destroyed by the Magistrate. 3. The preserved data is to be filed with the Magistrate in a sealed cover, inaccessible to both parties at this stage. 4. Both parties are at liberty to apply for disclosure at the appropriate stage of the trial, in accordance with the law.

This judgment reinforces the judiciary's role in ensuring a level playing field in criminal trials, particularly in the digital age where crucial evidence can be irretrievably lost if not preserved in a timely manner. It establishes a strong precedent that an accused's right to a fair trial may require the preservation of potentially exculpatory electronic evidence, even if it raises privacy concerns, which can be addressed through procedural safeguards during the trial.